Australian Environmental Law Norms, Principles and Rules. [3 ed.] 9780455232317, 0455232318

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Australian Environmental Law: Norms, Principles and Rules 3rd Edition provides a detailed examination of the fundamental concepts and principles of the environmental legal system in Australia. This new edition updates relevant State, Territory and Commonwealth legislation and case law and expands on the themes set out in the 2nd edition, namely:

the origins and contexts of environmental governance the movement toward ecologically sustainable development the relevance and function of ecologically sustainable development today in the legal system the range of instrumental rules supporting environmental governance. The 3rd edition in particular expands upon the range of instrumental rules by analysing through the case law the emerging sets of rules of competence and limitation on the one hand and the emerging sets of purposive, deliberative, methodological, strategic, liability and market rules on the other hand. This thematic and principled approach adopted in Australian Environmental Law: Norms, Principles and Rules 3rd Edition presents the reader with coverage of the important issues surrounding this area of the law in a clear and concise way.

AUSTRALIAN ENVIRONMENTAL LAW NORMS, PRINCIPLES AND RULES /

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3RD EDITION

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AUSTRALIAN ENVIRONMENTAL LAW Norms, Principles and Rules

INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters Sao Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

DE FISHER MA, LLB, PhD (Edinburgh) Professor of Law Queensland University of Technology

THIRD EDITION

lAWBOOK CO. 2014 ii

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 100 Harris Street, Pyrmont, NSW First edition 2003 Second edition 2010 National Library of Australia Cataloguing-in-Publication entry Fisher, D E (Douglas Edgar), 1941Australian environmental law: norms, principles and rules/ D E Fisher Third edition Includes bibliographical references and index ISBN 9780455232317 (paperback) Environmental law - Australia Australia - Environmental conditions 344.94046 © 2014 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribe_d under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Commonwealth: Copyright of Cth legislative material: All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility. New South Wales: Copyright of NSW legislative material: Copyright continues to reside in the State of NSW. Queensland: Copyright of Queensland legislative material: © The State of Queensland (2013). South Australia: Copyright of SA legislative material: Copyright is owned by the Crown in nght of the State of South Australia. Tasmania: Copyright of Tasmanian legislative material: Copyright is owned by the State of Tasmania.

Editor: Sandra Bassam Product Developer: Natasha Naude Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW

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PREFACE In the preface to the first edition written in 2002 it was noted that "there is now a very large body of environmental law in Australia". Indeed over the last decade the body of environmental law in Australia has grown even larger. Although sustainability or in Australia ecologically sustainable development was increasingly becoming a part of the fabric of environmental law in Australia in 2002, it has only been more recently that we have benefitted from the contribution of the judiciary to the emergence of what may be described as the evolving jurisprudence of environmental law. The issues around which this has centred have been resource development, climate change and to a lesser extent water. Much of environmental law remains procedural, administrative and institutional. This remains important. However, the focus of the following pages is the substance of environmental law. Accordingly the emphasis is on what the legal system is trying to achieve and the ways and means for achieving it. What seems to be emerging is a closer relationship between the substance of the law, the methodologies of the law and the processes of the law. The influence of international environmental law predicates an arrangement of principles formulated relatively generally and flexibly that inform both formally and informally the protectable rights and the enforceable duties that comprise the law in the more traditional sense. The focus of the following pages is doctrines, functions, instruments and methodology within the context of substance. Although sustainability is beginning to emerge in one form or another as the fundamental grundnorm of the environmental legal system, including the system in Australia, it would be premature to conclude that the achievement of ecologically sustainable development is an enforceable legal obligation. Far from it. But doctrines, functions, instruments and methodology are reflective of ecologically sustainable development. It is thus ecologically sustainable development and its supporting range of principles that are the catalyst for the recognition or introduction of innovative approaches not only to the structure of environmental legislation but also to its interpretation and implementation. Sustainability needs to be seen in its historical context. For several hundred years, for example, the focus of what could be described as the environmental legal system was the use and development of the natural resources of the environment for the economic and social benefit of the community. Then values changed towards the end of the 19th century and more particularly during the second half of the 20th century in consequence of the greater awareness of environmental degradation brought about by rapid increases in population and industrialisation. In this way environmental law became polarised with the development of the resources of the environment at one extreme and the protection and conservation of the environment at the other extreme. Ecologically sustainable development seeks to do no more than eliminate this polarisation by bring together the economic, the social and the ecological or environmental objectives of the system through the introduction or recognition of doctrines, functions, instruments and methodology that are intrinsically consistent and coherent.

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Preface

Australian Environmental Law

If this is the way in which the environmental legal system in Australia is developing, then it is perhaps appropriate to review the legal doctrines and the legal structures that are beginning to underpin these developments . Management of the environment is often stated to be predicated upon a concept of adaptive management. Perhaps this is also true of the legal system. It is accordingly suggested that the environmental legal system is adapting to ecologically sustainable development by recognising more formally the relationships between what have been perceived in many respects to be the disjointed components of a fragmented system. International environmental law is often stated to be comprised of a set of arrangements described as hard law and soft law. The same may well be true of the Australian environmental legal system. But this description is becoming increasingly outdated and unhelpful. What is emerging may be described as a set of legal rules informed by and implemented within a system of paralegal rules. The former are directly enforceable in the traditional sense and the latter, while not enforceable in themselves, impact directly upon how legal rules are interpreted and applied. The jurisprudential structure thus emerging comprises:

The environmental legal system in Australia is here treated selectively and not comprehensively. The following pages d~ no_t pr~vide an answer to any_ particular problem. The answer is found in the legislation'. m the regul~tions and m the way in which the courts have interpreted and applied these. It 1s nevertheless hoped that the following pages will provide an understanding of how ~ese issues can be approached and a conclusion reached that is informed and Justified as a matter of legal principle.

DE FISHER

January 2014

• a set of relatively general and flexible norms stating the values that underpin the system • a set of strategic rules indicating clearly the direction of operational activity and decision-making in relation to the environment • a set of performance rules indicating how activities should be undertaken and how decisions should be made • a set of liability rules protecting the rights and enforcing the duties that indicate what can be done and what cannot be done and what decisions can be made and cannot be made • a set of market rules whose function is to support or create a market as an instrument of regulation. These sets of norms and rules may now be perceived to be linked to increasingly important rules of methodology in relation to how decisions are made about both existing operations and proposed operations affecting resources and the environment. There is perhaps little new about each of these sets of arrangements. Sustainability can be an element of each of these. The issue, however, is whether sustainability has the capacity to become the force which binds them together. The following pages seek to address this issue. It does so by considering sets of norms, principles and rules both doctrinally and operationally. There are four parts: • the normative context of environmental law which reviews the sources of inspiration of environmental values that are ethical, international and constitutional • its normative structure that considers the fundamental directions of environmental law and in particular sustainability • its instrumental structure that reviews the extensive range of rules that comprise the instruments or the mechanisms for managing the environment and seeking to achieve ecologically sustainable development • the system in operation that reviews the three functions of resource development facilitation, environmental protection and environmental conservation in the emerging context of global challenges to the performance of these three functions. vi

vii

ACKNOWLEDGMENTS Extracts of the following material have been reproduced in this book: American Association for the Advancement of Science, USA:

L White, "The Historical Roots of Our Ecologic Crisis" (1967) 155 Science 1203. American Scientist:

Yi-Fu Tuan, "Our treatment of the environment in ideal and actuality" (1970) 58 American Scientist 244. Ashgate Publishing Ltd, Aldershot:

K Bosselmann, The principle of sustainablity: transforming law and governance (2008). Bayerischer Landtag:

Constitution of Bavaria 1946, Art 141(3). The Bodley Head, London:

N Stem, A Blueprint for a Safer Planet (2009). Cambridge University, Cambridge:

R Goodin, Utilitarianism as a Public Philosophy (1995). A Gilpin, Environmental Impact Assessment (EIA): Cutting Edge for the Twenty-first Century (1995). "Behring Sea Fur Seals Arbitration" (1893) 1 International Environmental Law Reports 43. "Trail Smelter Arbitration" (1941) 1 International Environmental Law Reports 231 Court of Justice of the European Commission, Luxembourg:

Commission of the European Communities v Federal Republic of Germany (1991) European Court Reports 1-883. Commonwealth Copyright Services (also AGPS):

Ranger Uranium Environmental Inquiry: First Report (Canberra, AGPS, 1976). Controller of HMSO and the Queen's Printer for Scotland, ©Crown Copyright:

Lord Advocate v Clyde Navigation Trustees (1891) 19 Rettie (Court of Session) 174 (Scotland). Council of Law Reporting for New South Wales:

New South Wales Law Reports (NSWLR). Council of Law Reporting for Victoria:

Victorian Reports (VR). Dartmouth Publishing Co Ltd, Aldershot:

K H Ladeur, "Environmental Constitutional Law" in Gerd Winter, European Environmental Law - a Comparative Perspective (1996). Duckworth Publishers, London:

JPassmore, Man's Responsibility for Nature (1974). Eastern Book Co:

Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212. ix

Acknowledgments

Australian Environmental Law

Foreign Languages Press:

Macmillan Press Ltd, London:

Environmental Protection Law 1989 (People's Republic of China), Arts 1 and 4.

J Alder and D Wilkinson, Environmental Law and Ethics (1999).

Foundation Press, New York:

Martinus Nijhoff, Dordrecht (div of Kluwer Academic Publishers):

D Hunter, J Salzman, D Zaelke, International Environmental Law and Policy (3rd ed, 2007).

S B Chowdhury, "Permanent Sovereignty Over Natural Resources" in P de Waart, p Peters and E Denters (eds) International Law and Development (1988).

Garland Publishing (div of Routledge, New York):

N Singh, "Sustainable Development as a Principle of International Law" in P de Waart, P Peters and E Denters (eds), International Law and Development (1988).

J G Vaillancourt, "Environment" in R Paehlke Environmentalism: An Encyclopaedia (1995).

(ed),

Conservation and

Harvard Environmental Law Review (for Harvard University):

E Brandl and H Bungert, "Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad" (1992) 16 Harvard Environmental Law Review l. Hodder Headline:

M Nicholson, The Environmental Revolution (1972). Illinois General Assembly, State of Illinois: Constitution of the State of Illinois, Art XI. The Incorporated Council of Law Reporting for England & Wales:

Navajo Nation Environmental Protection Agency:

Navajo Nation Code: The Navajo Nation Environmental Policy Act, Chapter 9 of Title 4. Office of Environment and Heritage (NSW):

List of Statutes Administered by Office of Environment and Heritage (NSW). List of Environmental Statutes Not Administered by Office of Environment and Heritage (NSW). Oxford University Press, New York:

A Leopold, A Sand County Almanac with Other Essays on Conservation from Round River (1966).

Reports on Appeal Cases (AC).

I Ayres and J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992).

Indiana University Press, Bloomington:

Oxford University Press, Oxford:

KB Kelley and H Francis, Navajo Sacred Places (1994).

P W Birnie, A E Boyle and C Redgwell, International Law and the Environment (2009).

Environmental Protection Act 1990 (UK).

Information Office of the State Council of the People's Republic of China:

China's Policies and Actions for Addressing Climate Change (Beijing, 2008). International Legal Materials, ©The American Society of International Law

The Philippines Supreme Court: Minors Oposa v SecretanJ of the Department of Environment and Natural Resources Qanuary 1994) 33 ILM 173.

J G Laitos, The Right of Nonuse (2012). Penguin Group

C Ponting, A Green History of the World (1991). Princeton University Press (Princeton University) New Jersey:

International Court of Justice: Judgment in the Case Concerning the GabcikovoNagymaros Project Qanuary 1998) 37 ILM 162.

P Taylor, Respect for Nature: A Theory of Environmental Ethics (1986).

Japan: Kayano v Hokkaido Expropriation Committee (The Nibutani Dam Decision) (March 1997) 38 ILM 397.

L K Caldwell and RV Bartlett (eds), Environmental Policy: Transnational Issues and National Trends (1997) .

Quorum Books, Westport, Connecticut:

Pulp Mills (Merits) case (2010) 44 ILM 1123.

Sierra Club Books, San Francisco:

Japanese Consulate:

T Berry, Evening Thoughts: Reflecting on Earth as a Sacred Community (2006).

Constitution of Japan, Art 13.

Sir Matthew Hale, the Lord Chief Justice of England from 1671 to 1676, London:

Korea Legislative Research Institute:

M Hale, The Primitive Origination of Mankind (1677).

Natural Environment Conservation Act 1991 (South Korea), Art 7.

Smithsonian Institution Press, Washington:

Laurence Pollinger:

I McHarg, "Values, Process and Form" in The Fitness of Man's Environment (1968).

R Carson, Silent Spring (1965).

Sweet & Maxwell, UK:

LexisNexis Australia:

Lopez Ostra v Spain (1994) 20 EHRR 277.

Australian Law Reports (ALR).

Thomson Reuters (Professional) Australia Limited:

LexisNexis South Africa:

Commonwealth Law Reports (CLR).

Butterworths Constitutional Law Reports.

Environmental and Planning Law Journal (EPLJ).

X

xi

Australian Environmental Law

Federal Court Reports (FCR).

BRIEF CONTENTS

Local Government and Environmental Reports of Australia (LGERA). M Wilcox and M Rennie, Australian Emissions Trading Law (2012). United Nations:

United States of America v Canada (1941) 3 RIAA 1905. Icelandic Fisheries (Jurisdiction) Case (1974) ICJR 3. International Covenant on Civil and Political Rights 1966 (1980) ATS No 23. Draft International Covenant on Environment and Development, Pt II, Art 2.

Preface ....................................................................................................................................v Acknowledgments ................................................................................................................ IX

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Selected Bibliography of Environmental Texts ................................................................ 1xxi Selected Bibliography of Periodical Literature ............................................................. lxxvii

UN Environmental Program, Principles on Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States, Principle 3(3).

Espoo Convention on Environmental Impact Assessment in a Transboundary Context

PART I. THE NORMATIVE CONTEXT OF ENVIRONMENTAL LAW ............... 1

(1991), Art l(vii).

1. The Nature of Environmental Law ............................................................. 3

Southern California Law Review (for University of Southern California):

2. The Ethical Dilemmas of Environmental Law ........................................ 33

C Stone, "Should trees have standing? - toward legal rights for natural objects" (1972) 45 Southern California Law Review 450.

3. The International Framework of Environmental Law .......................... 59

University of Cape Town Press, South Africa:

P Lazarus, I Currie and R Short, "The legislative framework: Environmental law, investment and industrial practice" in L Bethlehem and M Goldblatt (eds), The Bottom Line: Industry and the Environment in South Africa (1997). University of Chicago Press, USA:

R Hardin, Morality Within the Limits of Reason (1988). University of Nottingham (for International Human Rights Review (IHRR)):

4_ The Constitutional Foundations of Environmental Law ...................... 87

PART 11. THE NORMATIVE STRUCTURE OF ENVIRONMENTAL LAW ...... 123 5_ The Changing Directions of Environmental Law .................................. 125 6. The Normative Sources of Sustainability .............................................. 155 7, Sustainability in Australian Legislation .................................................. 173

Lansman v Finland (1995) 2 IHRR 287. University of Sydney (for Sydney Law Review):

J Crawford, "The Constitution and the Environment" (1991) 13 Sydney Law Review

PART 11. THE INSTRUMENTAL STRUCTURE OF ENVIRONMENTAL LAW ........................................................................................... 211

11.

8. Rules of Law in Support of Environmental Policy and Regulation .... 213

West Group (Thomson Reuters):

Supreme Court Reporter (S CT). Westlaw Reports. WW Norton & Company, New York:

J R McNeill, An environmental history of the twentieth century world: Something new

9. Rules of Competence ............................................................................... 233 10. Rules of Limitation - Regulatory, Liability and Market Rules .......... 253 11. Rules of Limitation - Methodological Rules for

Environmental Governance .................................................. 287

under the sun (2001).

12. Rules of Limitation - Normative and Strategic Rules ........................ 325

Yale Law Journal, Yale University:

13. Rules of Limitation - Planning Rules ................................................... 369

W N Hohfeld, "Fundamental legal conceptions" (1913) 23 Yale Law Journal 16.

M Sagoff, "On preserving the natural environment" (1974) 84 Yale Law Journal 205. L Tribe, "Ways not to think about plastic trees: New foundations for environmental law" (1974) 83 Yale Law Journal 1315.

xii

xiii

Australian Environmental Law

PART IV. ENVIRONMENTAL LAW IN OPERATION ................................... 407

TABLE OF CONTENTS

14. Facilitation of Resource Development ................................................ 409 15. Protection of the Environment ............................................................. 455 16. Conservation of the Natural and Cultural Environment .................. 535 17. Enforcement ............................................................................................ 589 18. How Environmental Law is Responding to Global Challenges ........ 637 Index .................................................................................................................................. 701

Preface ................................................................................................................................... v

Acknowledgments ................................................................................................................ ix Brief Contents .................................................................................................................... xiv Table of Cases .................................................................................................................. xxvii Table of Statutes ........................................................................................................... xxxvii Selected Bibliography of Environmental Texts ................................................ ................ lxxi Selected Bibliography of Periodical Literature ............................................................. lxxvii

PART I. THE NORMATIVE CONTEXT OF ENVIRONMENTAL LAW ............... 1 1. The Nature of Environmental Law ............................................................. 3 [1.10] Introduction ............................................................................. ................... .... ....... 3 [1.20] Environment ............................................................................................... ............ 4 [1.20] Its original meaning ............................................................................ 4 [1.30] Its contemporary meaning ....................................................... .......... 4 [1.40] Law .................................................................................... ......................... ............. 5 [1.40] The nature of a law ............................................................................. 5 [1.50] The complexity of environmental law ............................................. 7 [1.90] Responsibility for the environment .................................................. 8 [1.100] The structure of environmental law ......................... ...................... 9 [1.110] Environment in international law .................................................................. 12 [1.110] Its meaning for liability rules ........................................................ 12 [1.120] Its meaning for protection rules ................................................... 13 [l.130] Its meaning for planning rules ...................................................... 14 [1 .140] A focussed meaning ....... ...... ............ ............................................... 15 [1.150] Environment in national laws ........................................................................ 16 [l.150] United States of America ............................................ .................... 16 [1.160] United Kingdom .............................................................................. 16 [1.170] Bulgaria ....................................... .................. ..................................... 17 [1.180] South Africa ........................... ........................... .................. .............. 17 [1.190] India ................................... ....... ......... ................................... ........ ..... 17 [1.200] China .................................................................................................. 18 [1.210] Environment in Australian law ...................................................................... 18 [l.210] Focussed interpretations ................................................................. 18 [1.220] Generic interpretations .......... .......... ...... ...... ...... ............ ............. .... 20 [1.230] The interpretation of environment in practice ........................... 21 [l.240] Judicial interpretations of environment ....................................... 23 [l.300] The relationship between environment and impact ...... .. .. ..... .. 28 [1.310] Conclusion ......................................................................................................... 32 2. The Ethical Dilemmas of Environmental Law ........................................ 33 [2.10] Introduction ......................................................................................................... 33 [2.20] Humans and their environment ...................................................................... 34 xiv

xv

Table of Contents

PART IV Australian Environmental Law

[2.20] A historical perspective ............................ ........................................ 34 [2.30] A functional perspective ................................................................... 36 [2.70] A theoretical perspective .................................................................. 39 [2.150] Environment and the law ......................................................... ........ .............. 46 [2.150] The deficiencies of the law .... ........................................................ 46 [2.160] Human environmental values .......................... ............................. 47 [2.230] Intrinsic environmental values ........................................ ....... .... ... 54 [2.240] Fundamental rights ..................................... ............................ ........ 56 [2.250] Conclusion ............................................................................... ... ....................... 57 3. The International Framework of Environmental Law .......................... 59 [3.10] The foundations of international environmental law .................. ................ 59 [3.10] The principle of permanent sovereignty .............................. ......... 59 [3.20] Early environmental concerns ......................................................... 60 [3.30] Contemporary environmental perspectives ........ ..... .............. ....... 61 [3.70] The principles of international environmental law ...................................... 68 [3.80] Instruments of policy .. ................................................. ..................... 68 [3.100] International Conventions ...................................... ........................ 71 [3.170] The international environmental legal system ........ ...... .... ............... ...... :.... 76 [3.170] Its scope and substance .................................................................. 76 [3.180] Its mechanisms ...................... ........................ ... ................................ 77 [3.190] Its principles ..................................................................................... 77 [3.200] The significance of international environmental law for Australia ......... 78 [3.210] The relationships between international law and Australian law .................................................................................. 78 [3.260] International law and the external affairs power ...................... 81 [3.270] Summary .............. .................................................................................... .......... 83 [3.300] Appendix 3.1: Functions of International Law Principles and Concepts ... ............................. ........................... ... .................... 85 4. The Constitutional Foundations of Environmental Law ...................... 87 [4.10] Nature of Constitutional Arrangements ......................................................... 87 [4.20] Constitutional rights and duties ....................................................... ............... 88 [4.20] A right of nature - Ecuador ................................. ....... ..................... 88 [4.30] An environmental right - South Africa ............................. ....... ..... 89 [4.40] An environmental right and duty - the Philippines .................. 90 [4.50] An unenforceable environmental right- the State of Bavaria .... 91 [4.60] Environmental policy statements - the People's Republic of China .................... ..................................................... ...................... 92 [4.70] Environmental policy statements - the European Union ......... . 93 [4.80] An environmental duty - Greece .... .............................. ........... ...... 94 [4.90] An environmental right and policy statement - the State of Illinois ... ..... .. .............. ... ... ..... ... ...... .... ... .. .... .. ... ... .. ................... ..... .. 95 [4.100] A procedural right leading to an environmental right - India ............ .................................. ...... .................................. 96 [4.110] A right to life leading to an environmental right .............. ....... . 98 [4.130] Summary ........ ...... ..................................... .............. .............. .......... 100 xvi

[4.140]

Constitutional arrangements in Australia ... .. ............................................. 101 [4.150] The relevance of the environment ............. ...... .. ......................... 101 [4.160] The relevance of human rights .............................. ............... ...... 102 [4.170] Cooperative environmental management ...... ........................... 103 [4.180] Issues in cooperative water resources management ... ............ 104 [4.210] The power of the Commonwealth to make laws ...... .............. 106 [4.270] Commonwealth involvement in environmental management ......................... ......... .................................................. 113 [4.340] Summary ...... ... ................ .. ....... ............... .......... ........................ ...... 120

PART II. THE NORMATIVE STRUCTURE OF ENVIRONMENTAL LAW ...... 123 5. The Changing Directions of Environmental Law .................................. 125 [5.10] Introduction ............................ ........................................................................... 125 [5.20] Statutory environmental charters .................. ........ ........................................ 126 [5.20] United States of America ....... ............. ........................................... 126 [5.50] Asia .................................................................................................. .. . 129 [5.80] The European Union ....................................................................... 132 [5.90] The United Kingdom ...................................................................... 134 [5.100] Conclusion ............................................. ......................................... 135 [5.110] Environmental charters in Australia ..... ....... ............................... ................ 135 [5.120] Integrated environmental management policies ........ .............. 135 [5.130] The management of water in Western Australia .. ................ ... 136 [5.140] The protection of the environment in Victoria ............. ............ 138 [5.150] The conservation of nature in Queensland ....................... ........ 140

[5.160]

Towards integrated land management in New South Wales ........................................................................... 141 [5.170] Towards sustainable development in Tasmania ........... ........... 143 [5.180] Commonwealth environmental management ................... ....... 145 [5.190] Summary ............................. ............................................................ 147 [5.300] Appendix 5.1: Navajo Environmental Policy Act ..................................... 149 [5.400] Appendix 5.2: Intergovernmental Agreement on the Environment. ..... 151 [5.500] Appendix 5.3: National Strategy for Ecologically Sustainable Development ....... ........................................................ .... ........... 153 6. The [6.10] [6.20] [6.30]

Normative Sources of Sustainability ................................ .............. 155 Introduction ............... ............................... ................................................... ...... 155 Sustainability in historical perspective ......................................................... 155 Sustainability in a normative context ........ ............. ...................... .. .............. 158 [6.30] Introduction ....................................... ................................... ............ 158 [6.40] The meaning of sustainability as a concept ..... ............ ............... 159 [6.50] The function performed by ecologically sustainable development ................................................................ 162 [6.60] Sustainable development as an international norm ................................... 165 [6.60] Sustainable development as a paralegal rule ............................. 165 [6.70] Sustainable development as a legal rule ..................................... 166 xvii

Australian Environmental Law

[6.100]

Conclusion ................................... ............ ... ........................................... ... ....... 171

7. Sustainability in Australian Legislation .......... ......... ............................... 173 [7.10] Sustainability in Australia .................. .... ...... .... ........ .......... ... .. ........... ..... ........ 173 [7.20] Sustainable development in the context of land tenures ............ .. ..... .... ... 175

[7.50]

[7.70]

[7.110]

[7.140]

[7.200]

[7.270]

[7.370]

xviii

[7.30] New South Wales and Queensland .............................................. 176 [7.40] Northern Territory ........ ........................................... ........... ..... .... .... 177 Sustainable development in the context of forestry ..... .............................. 178 [7.50] Tasmania .. ... ... ................... ........................ .. ....................................... 178 [7.60] Victoria ..... ...... ........... ... ...... .......................................... ..... ............. .... 179 S~stainable development in the context of developing nun er al resources ........................ ............................. ......................................... 180 [7.80] Northern Territory .. .................................... ..................................... 180 [7.90] Victoria ......................... ........ .......... ......... ........... ............... ................. 181 [7.100] Queensland .................................................................. .. ................. 182 Sustainable development in the context of water resources ................... 184 [7.120] Victoria ... .................................. ..................................... ...... ....... ...... 184 [7.130] Commonwealth ...................................... ........................................ 185 Sustainable development in the context of fisheries resources .............. 186 [7.150] Western Australia .... ........................ ............................................... 186 [7.160] Victoria .......................................................... ... ............... ............. .... 187 [7.170] Queensland .................................... ........................... ..... ................ . 187 [7.180] New South Wales ............................................................ ............... 188 [7.190] Commonwealth ..................... ............... ........................................ .. 189 Sustainable development in the context of planning ..... ........ .................. 191 [7.210] Western Australia ... ...... ............................. .................................. .. . 191 [7.220] Victoria .......................... .............. .......... .. ................................... ...... 192 [7.230] New South Wales .......... ........................ ........... ... ......................... .. 192 [7.240] South Australia ................... .................. .......................................... 193 [7.250] Tasmania .... .............. ........ ....... ....................................................... .. 193 [7.260] Queensland .................................................... ............... .................. 194 Sustainable development in the context of environmental protection. 195 [7.280] Victoria ................. ....................................................... ..................... 195 [7.290] Northern Territory ..................................................... ... ......... ........ 197 [7.300] Australian Capital Territory ................................ ................. ........ 197 [7.310] South Australia .. .. ... ........................................................................ 197 [7.320] New South Wales ............. ............ ....... ... ..................... ......... .......... 198 [7.330] Commonwealth .......................... .......... ..................................... ..... 198 [7.340] Tasmania ............................................ ................. .......................... ... 199 [7.350] Queensland ... ... .................... ........ ................................................... 199 [7.360] Western Australia ..................................... ............... ..................... .. 200 Sustainable development in the context of nature conservation ......... .. 201 [7.380] Western Australia .................................................................... ....... 201 [7.390] Victoria ................................................. ...... ...................................... 201 [7.400] Queensland ...................................................... ....................... ........ 202

Table of Contents

[7.410] New South Wales ....... ........................................ ............................ 202 [7.420] Commonwealth ...... ......... ........... ................................................. ... 203 [7.430] Sustainable development in the context of administrative integration. 205 [7.430] Victoria ....................................................................... ....... .......... ..... 205 [7.440] New South Wales ... .. .................................................... ... ............... 206 [7.450] Conclusion .......................... .... ........................ ...... ..... ........ .... ...... ..................... 207 [7.500] Appendix 7.1: Fisheries Management Act 1994 (NSW), s 3 ........... ........ 208 [7.600] Appendix 7.2: Fisheries Management Act 1991 (Cth), s 3 ............. ......... 209

PART Ill . THE INSTRUMENTAL STRUCTURE OF ENVIRONMENTAL LAW ........................................................................................... 211 8. Rules of Law in Support of Environmental Policy and Regulation .... 213 [8.10] Introduction ...................................................................................... ................. 213 [8.20] Environmental policy ........ .................. ..... ......... .................................. .... ......... 214 [8.30] Environmental regulation ............. ... .................... ...... ................. .. ......... .......... 215 [8.30] Approaches to regulation ...... ...................... ................................... 215 [8.40] Instruments of environmental regulation ....... ...... ..... ............ .. ... 216 [8.50] The law as an instrument of environmental regulation ....... ........... .......... 218 [8.50] The function of law ...................................................... .. ... ........ ... .. . 218 [8.60] Rules of law as a source of power .. .................... .... ................. .... 221 [8.70] Rules of law to support regulation .................... ...................... .... 222 [8.80] The functions of rules of law ... .. ...... ...... ... ... .... ... .. .. .. .............. ...... 223 [8.120] Rules of law to support economic instruments ........... ............ 224 9. Rules of Competence ............................................ ................................... 233 [9.10] Introduction .................. .................... .. ............................................ ......... .......... 233 [9.20] Rights of property ................ ... ...................................... ........ ...................... .... . 233 [9.30] The characteristics of rights of property ................................................ ...... 235 [9.30] The idea of property .. .... ... ....... ........................... ............................ 235 [9.40] Judicial perceptions ............ ............................... .............................. 236 [9.50] The function of public property .. ..... ............... ........ ....................................... 237 [9.50] The idea of public property ................ ........................................... 237 [9.60] The common law ....................................... .................... .................. 238 [9.90] Implied public property doctrines ... ...... .............................. ..... ... . 239 [9.120] Statutory rights of public property ................. ............... ............ 242 [9.150] Aboriginal Land Ownership ............................. ... ...... ......... .......... .. .............. 245 [9.150] Introduction ............. .. .... ............... ... .......... ............. ........................ 245 [9.160] Aboriginal land claims .................................. ............................... 245 [9.200] Statutory Rights of Access ... ........ ........... ............. .................................... ..... 249 [9.200] Rights of access in general ................. .......................................... 249 [9.210] Access to fisheries ................. ......... ....... .............. .. ................. .. ...... 250 [9.220] Rights to pollute .............................. .............................................. 251 [9.230] Conclusion .................................. ....... .. ....... .................................. ................... 252

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[11.280]

10. Rules of Limitation - Regulatory, Liability and Market Rules .......... 253

[10.10] Regulatory rules .................................................... ....................... ........... .... .... 253 [10.20] Negative duties ............................................................................................... 254 [10.30] Protection of the environment by the Commonwealth .. ........ 254 [10.40] Pollution control in New South Wales ...................................... 256 [10.50] Positive duties ..... ............................................................................................ 257 [10.60] Renewable energy .......................................................................... 257 [10.70] Offshore petroleum operations .................................................... 257 [10.80] Discharge standards ...................................................................... 258 (10.90] General environmental duties ..................................................... 259 [10.100] Land conservation duties ........................................................... 261 [10.110] Liability rules ................................................................................................. 262 [10.120] Statutory civil liability rules .. .................................................... 263 [10.130] Statutory criminal liability rules .......................... .. ................... 264 [10.150] The relationship between statutory liability rules ................. 268 [10.210] The relationship between regulatory and liability rules .. .... 275 [10.240] Summary ....................................................................................... 280 [10.250] Market rules .......................................................................................... ......... 280 [10.260] Sources of marketable rights .............................................. .. ..... 281 [10.270] Tradeable water rights ................................................................ 282 [10.280] Tradeable rights to pollute ......................................................... 283 [10.290] Tradeable carbon sequestration rights ........ ............................. 284 [10.300] Conclusion ..................................................................................................... 285 11. Rules of Limitation - Methodological Rules for Environmental Governance .................................................. 287

[11.10] [11.20] [11.30] [11.40] [11.50]

Introduction ..................................................................................................... 287 The nature of judicial functions .................................... ............................... 288 The language of methodological rules ........................................................ 290 Towards polycentricity ................................................................................... 291 Jurisdictional rules .......................................................................................... 293 [11.50] Introduction ............................... .... ................................................. 293 [11.60] Rules prescribing jurisdictional fact ........................................... 294 [11.110] Rules prescribing managerial fact ......... .............................. ...... 297 [11.150] Purposive rules .......................................................... .................................... 302 [11.150] Introduction .................................... .............................................. 302 [11.160] The relevance of purposive rules .............................................. 303 [11.190] The functions of purposive rules ........................................... ... 306 [11.200] The judicial approach to purposive rules ............................... 308 [11.240] Deliberative rules .......................................................................................... 312 [11.240] Introduction ................................. ................................................. 312 [11.250] The language of the rules ........................................................... 312 [11.260] The importance of the language .............................. ................. 313 [11.270] The nature of the deliberative obligation ................................ 315 xx

Evolving judicial approaches to the deliberative obligation ....................................................... ................................ 318

12. Rules of Limitation - Normative and Strategic Rules ........................ 325

[12.10]

Introduction .......................................................................... ..... ...................... 325 [12.20] Arrangements for environmental governance .... ...... .... ..... .. .... 326 [12.30] The normative context ................... ................................... .... ................ ....... .. 327 [12.40] International influences ................................................................ 327 [12.50] Constitutional influences .............................................................. 329 [12.60] Strategic rules ........................................ ..... ............................... ............... ....... 331 [12.60] Introduction ... .............. ..... .............................................. ....... ......... 331 [12.70] Public rights and public duties ............................................... .... 332 [12.80] Environmental factors as rules of limitation ............................................. 335 [12.80] Environmental factors in general ........ ....... ............... ................ .. 335 [12.110] Environmental factors in land use planning .......................... 336 [12.120] Ecologically sustainable development as a limitation rule .... 338 [12.210] Rules to achieve ecologically sustainable development ......... ............... 350 [12.210] The challenge ................................ .... ........................ .................... 350 [12.220] The statutory matrix of rules ..................................................... 351 [12.230] The precautionary principle ........ .. ............. ........ ........ .. ............. 353 [12.280] Conclusion ........... ... ......... .... ... ............................... .. ........... .... ...... 363 [12.290] Rules to support polycentricism ............................................................. ... 364 [12.300] The Xstrata case ........................................................................... 365 [12.310] The Bulga case ........... .......... ......................................................... 366 13. Rules of Limitation - Planning Rules ................................................... 369

[13.10] [13.20]

Introduction ........ .................... ................. ........................................................ 369 Strategic planning ................................................................... ........................ 371 [13.30] Public inquiries .............................................................................. 371 [13.50] Statutory strategic assessment ..................................................... 373 [13.60] Planning for public resources management .............................................. 375 [13.60] The scope of management planning ...................... .................... 375 [13.70] Western Australia ................... .............. .......................................... 375 [13.80] South Australia and Tasmania .................................................... 376 [13.90] Australian Capital Territory and Victoria ........ ......................... 377 [13.100] New South Wales ................................ .. ....................................... 378 [13.110] Northern Territory and Queensland .................................. ...... 379 [13.120] Commonwealth ............................................................................ 381 [13.160] Planning for private resources development... ........................................ 386 [13.160] Introduction .................................................................................. 386 [13.170] Project planning ........................................................................... 387 [13.230] Physical planning .......... ................. ... ... .. .... ....... .... ............ .... .. .... 393 [13.260] Conclusion .................................................................... ................................. 401 [13.300] Appendix 13.1: Resource Assessment Commission Act 1989 (Cth), Sch 1 .......................................................................................................... ...... 402 xxi

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[13.400]

Appendix 13.2: Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), Sch 4 ............................................ 403

PART IV. ENVIRONMENTAL LAW IN OPERATION ................................... 407 14. Facilitation of Resource Development.. .............................................. 409 [14.10] Introduction ......... ........................................................ ...... ....... .................... .... 409 [14.20] Land allocation ..... ...... ... ..................... .......... .... ............................................... 409 [14.30] Crown Land Management Act 2009 (SA) ............. .................. .. 409 [14.40] Land Act 1958 (Vic) ....................................................................... 411 [14.50] Land Administration Act 1997 (WA) .................... ..................... 412 [14.60] Crown Lands Act 1976 (Tas) ...................................... ...... ............ 413 [14.70] Land Act 1994 (Qld) ...................................................................... 414 [14.80] Crown Lands Act 1989 (NSW) .............................................. ...... 417 [14.90] Summary ........... .. ................................. ............ .......... .. .... ..... .......... 418 [14.100] Forestry resources ............ ............. ............................. ................. .................. 419 [14.100] Introduction .................................................................................. 419 [14.110] Multiple use ........................ ......... .......................... ......... ...... ........ 419 [14.120] Private forestry resources ..................... ............................ .......... 420 [14.130] Productive public sector forestry .............................................. 422 [14.150] Sustainable public sector forestry ............................................. 425 [14.190] Towards self-regulation of forestry in Tasmania ............ ....... 434 [14.200] Energy resources ............... ......................... .................... ............................... 435 [14.200] The issues ........................ ............ ................................. ................. 435 [14.210] Environmental values ................................................................. 437 [14.260] Conservation of energy resources ........................... .................. 444 [14.280] Contextual issues in managing energy resources in New South Wales ... ... ......................... ..... ..................................... 446 [14.400] Appendix 14.1: National Strategy for Ecologically Sustainable Development, Part 8 .............................................. ................. 452 15. Protection of the Environment ............................................................. 455 [15.10] Introduction ......... ...... .......... .... ..... ..... ...... ... ............................................. ........ 455 [15.20] Concepts ........................................................................................................... 456 [15.30] Pollution and waste .................... .... .......................................... ..... 457 [15.40] Pollution, waste and environmental harm .... .. ... ... ... ... .... ..... .... 459 [15.50] Contamination, pollution, waste and environmental harm .... 460 [15.60] Pollution .......................................................................................... 461 [15.70] Environmental harm ..................................................................... 462 [15.120] Concepts in operation ...................... ...... ............... ............ ........................... 465 [15.130] The Palos Verdes case .......................................... ..... .................. 466 [15.140] The Maroochy case ..... ............................... ......................... ......... 467 [15.150] Principles ........... ............................................ ...... ........ .......................... ......... 468 [15.170] Substance ....................................................................................... 469 [15.250] Function ............................................. .. ... ....................................... 475 [15.260] Instruments for environmental protection ............................................... 477 xxii

[15.510]

[15.590]

[15.710]

[15.810] [15.900] [15.950]

[15.270] Regulatory rules ...................................................... ..................... 477 [15.350] Liability rules ......................................................................... ....... 482 [15.420] Environmental policies ............................................................... 492 Voluntary compliance ......... ................ ......................................................... 499 [15.520] South Australia ............................................................................. 499 [15.530] Australian Capital Territory ....... ................. ........ ....................... 500 [15.540] Tasmania ................................................ ........................................ 501 [15.550] Northern Territory ... .............. ............................................... ....... 502 [15.560] Victoria ....... .................................................................................... 503 [15.570] Queensland ............................................... .... ................................ 505 [15.580] Conclusion ......... ........................................................................... 506 Financial and economic measures .......... ................................................... 506 [15.590] Financial instruments ....... ............................ ......................... ...... 506 [15.600] Economic instruments ................................................................. 508 The Commonwealth scheme ...................................................................... 510 [15.710] The context of Commonwealth involvement ......................... 510 [15.720] Environment Protection and Biodiversity Conservation Act 1999 ............... .......................... ...................................... .......... 511 [15.750] World Heritage values - the 1983 Act and the 1999 Act compared ...................................................................... 515 [15.780] The scope of enquiry under section 75 ................................... 518 [15.790] The 1999 Act and regional forest agreements .... .................... 520 [15.800] The need for sufficient information under the 1999 Act ...... 525 Conclusion ........................................................................ .................... ......... 528 Appendix 15.1: Statutes administered by the relevant department .... 530 Appendix 15.1: Environment statutes not administered by the relevant department ..................................................................................... 532

16. Conservation of the Natural and Cultural Environment .................. 535 [16.10] The notion of conservation ........................................................................... 535 [16.20] The international context. ... ... ........................................................................ 536 [16.20] The Draft International Covenant .............................................. 536 [16.30] The World Heritage Convention ................................................. 538 [16.40] The Biodiversity Convention ....................................................... 538 [16.50] The role of the Commonwealth ................................................................... 540 [16.50] The Murray-Darling Basin ......... ............................... ................... 540 [16.60] World Heritage Areas ................................................................... 541 [16.70] The conservation of biodiversity ................................................ 542 [16.80] The preservation of the natural environment ........................................... 546 [16.80] Introduction ............... ..... ......... ............................. .......................... 546 [16.90] The protection of nature ............................................................... 547 [16.110] The conservation of nature .............. .............................. ......... ... 549 [16.130] The preservation of nature ........................ .................... ............. 553 [16.170] The integrated management of the natural environment ..................... 562 [16.170] Victoria ....................... ................. .. .................................................. 562 [16.180] Western Australia ......................................................................... 568 xxiii

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[16.190]

[16.240]

[16.300] [16.400] [16.500]

The conservation of land ......... ............................................................ ........ 570 [16.200] Native vegetation .. ........... ................................. ... ........... ... .. .. ...... 570 [16.210] Pastoral land .. ............. ... .................. .... .................. ............... ........ 572 [16.220] Land and soil .............................................. ....... ........................... 573 [16.230] Coastal areas ............................................................... ,., ............... 573 Cultural heritage ....... ... ..... .............. .................. ............. ............................ ... 575 [16.240] Cultural and natural values ....................................................... 575 [16.250] Cultural values in environmental legislation ............ ........... .. 576 [16.260] Natural values in cultural heritage legislation .............. ...... ... 577 [16.270] The management of cultural heritage ............ .......................... 579 Appendix 16.1 : Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), Sch 8 ........... ................................. 581 Appendix 16.2: Threatened Species Protection Act 1995 (Tas), Sch 1, Pt 2 .................... ................................ ...... ................................... .......... 585 Appendix 16.3: Natural Resources Management Act 2004 (SA), s 9 .. 586

17. Enforcement ............................................................................,................ 589 [17.10] The Function of enforcement... .............................................................. .. ..... 589 [17.10] The need for enforcement .. .......................................................... 589 [17.20] Enforcement processes .. ................................................................ 590 [1 7.30] Compliance: Environmental conservation .. .......................... .. .............. .. ... 592 [17.30] Natural values ......................... ...... ... .............................................. 592 [17.90] Cultural values ... .......... ...... ...... ....... ............. ............. .... .............. ... 597 [17.100] Compliance: Resource development ... ................... .... .......... ................. .... 598 [17.110] Compliance: Physical planning ........................................... ....................... 600 [17.110] General ................................................................................ ........... 600 [17.120] Investigation ... ........ ..................................... ..... ............................ 600 [17.130] Remedies ........................................... ............................................ 600 [17.220] Compliance: Environmental protection ............... ................. .................... 605 [17.230] Investigation ..................... .......................................... .......... ... ..... 606 [17.240] Audits .................................................. .......................................... 607 [17.250] Administrative remedies .............. ..... ................................ ......... 609 [17.260] Civil remedies ............................................................... ................ 612 [17.280] Criminal remedies .......... ... ... .................... ................................... 616 [17.350] Judicial review ... .. ... ................ ........... ................ ...... ...................................... 625 [17.360] Justiciability ... ........... .................. ............... ...... ... .......................... 626 [17.370] Locus standi .................................. .... ........ .................................... 628 [17.400] Conclusion ...... ... ............................. ...... ... ................................... ................... 634

[18.90]

[18.190]

[18.360]

[18.410]

[18.450] [18.500] [18.600] [18.700] [18.800]

[18.60] The regulation of emissions ....... ....................... .... ....................... 644 [18.70] The Massachusetts case ................................................................ 647 [18.80] The regulation of energy sources .............................. ................. 648 Controlling access to carbon ... ........................ ............ ... ................... ........... . 648 [18.90] The issues ................................... ..................................................... 648 [18.100] Project planning ...... ..................................................................... 649 Controlling access to land ...... ................................................................. .... 661 [18.190] Land use planning .......................... ................... .......................... 661 [18.200] The statutory relevance of climate change ...................... ..... .. 662 [18.210] Controlling the sources of energy .. ... ... ...... .. .... ....... ...... ...... ..... 663 [18.250] Controlling the impacts of climate change ......... .. ............. ..... 669 [18.350] Climate change and sustainable development ....................... 678 Sequestration .................................... .......... .... ................................... ..... ....... 680 [18.370] Biosequestration ............................................................ ...... .... ..... 680 [18.380] Geosequestration ........ .............. ................................................. ... 682 Market rules ................................................................. ................ .............. ... . 687 [18.420] The carbon credits legislation ................................. ................... 689 [18.430] The clean energy legislation ....... ..... ............... ......... .................. 690 [18.440] Summary ......................... ................ .............................................. 693 Conclusion ............. ........................................................................................ 693 Appendix 18.1: Wellington Planning Scheme, cl 15.08 .. ....................... . 695 Appendix 18.2: Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), s 357 ........... ............. ....................... ... .. .................. 696 Appendix 18.3: Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), ss 399 to 401 ............. ......... .............. .. .............. .... 698 Appendix 18.4: Kyoto Protocol 1997, Art 2(1)(a) ...... .............................. 700

Index ............................ .... ...... .... .................................................................. ...................... 701

18. How Environmental Law is Responding to Global Challenges ........ 637 [18.10] Introduction .................. ........................................... ........................................ 637 [18.20] The challenge of climate change ..................................... ............ 637 [18.30] Climate change and the law .... .................. ............... ......... .......... 639 [18.40] Emerging statutory responses to climate change .. ........ .......... 641 [18.50] The nexus between activities and impacts .................. ...... ....... 643 [18.60] Controlling the use of carbon .......... ....... ................................. .............. ....... 644 xxiv

XXV

TABLE OF CASES A AMP Capital v Tim Shellshear & Associates Pty Ltd (2012) 189 LG ERA 304 ............. 11.290 Alanvale Pty Ltd v Southern Rural Water [2010] VCAT 480 ..................................... 18.340 Aldous v GreaterTaree City Council (2009) 167 LGERA 13 ............................ 12.1601 18.270 Alexander v Yass Valley Council (2011) 184 LG ERA 123 .............................................. 11.290 Alexandrina Council v Strath Hub Pty Ltd (2003) 129 LG ERA 389 ............................ 13.240 Allen v United Carpet Mills Pty Ltd [1989] VR 323 .............................. 9.100 1 10.130 1 15.380 Alliance to Save Hinchinbrook v Environmental Protection Agency [2007] 1 Qd R 102; (2006) 145 LGERA 32 ................................................................................... 17.390 Alphacell Ltd v Woodward [1972] AC 824 ....................................................... 10.1301 18.50 Anderson v Director-General, Dept of Environment and Climate Change (2008) 163 LG ERA 400 ........................................................ 11.2701 11.290 1 12.1701 12.180 Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 158 LGERA 324 .............................................................. 11.1301 15.780 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2007) 97 ALD 398 ........................................... 15.7801 18.1401 18.160 Argos Pty Ltd v Minister for the Environment and Sustainable Development (2012) 190 LGERA 98; [2012] ACTSC 102 ................................................................ 17.380 Arnold v Minister Administering Water Management Act 2000 (2008) 163 LG ERA 429 ..................................................................................................... 4.150 1 12.50 Arnold v Minister Administering Water Management Act 2000 (2010) 172 LGERA 82 ...................................................................................................... 4.180 1 4.190 Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 ......... 10.150 Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153 ............................................................................................................................. 9.110 Australian Conservation Council v Latrobe City Council (2004) 140 LG ERA 100 ...... 18.110 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 ..... 1.3001 11.230, 12.70, 17.370, 18.200 Australian Deer Association Inc v Attorney-General for Victoria (2008) 20 VR 209 .......................................................................................................................... 16.170 Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 .................................................................................................................... 11.190 Australian Iron and Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 ....................................................................................................... 15.370 Axer Pty Ltd v Environment Protection Authority (1993) 113 LG ERA 357 ................ 17.330 Azzure Investment Group Pty Ltd v Mornington Peninsula Shire Council (2009) 169 LG ERA 36 ............................................................................................ 16.260

B BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LG ERA 237 ....... 12.1401 12.220, 12.250 BP SA Pty Ltd v Minister (2004) 2004 (5) South Africa 124 .......................................... 4.30 Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200 ...... 1.250 1 13.190 Ball v Consolidated Rutile Ltd [1991] Qd R 524 ............................................................. 9.70 Bank of New South Wales v Commonwealth (1948) 76 CLR 1 .................................... 9.30 Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 48 ALD 53 ................................................................................................................ 11.190 Barro Group Pty Ltd v Brimbank City Council (2012) 189 LG ERA 191 ........................ 11.300 Barton Securities Ltd v Warringah Council (2009) 170 LGERA 223 ............................ 11.100

xxvii

Table of Cases

Australian Environmental Law

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 ................................................................................ 11.300 Behring Sea Fur Seals Arbitration (1893) 1 International Env Law Rep 43 ................ 18.30 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234 ...... 12.140, 12.150, 12.220, 17.330 Betland v Environment Protection Authority (2010) 175 LG ERA 317 ......•................... 17.70 Blue Mountains Conservation Society Inc v Delta Electricity (2009) 170 LGERA 1 ······························································································································· 17.270 Blue Mountains Conservation Society Inc v Delta Electricity (No 3) (2011) 183 LG ERA 307 ............................................................................................................... 10.40 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 100 ALD 83 ............................................................................................................. 15.800 Bone v Mothershaw [2003] 2 Qd R 600 ...................................................................... 12.50 Booth v Bosworth (Flying Foxes case) (2001) 114 FCR 39; 117 LG ERA 168 ...... 10.30, 12-40, 15.750, 15.770, 15.780, 16.70, 17.390 Bowden v Break O'Day Council (2008) 162 LG ERA 4 ................................................. 17.170 Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 94 LGERA 380 .... 11.200, 13.70, 14.170 Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1; 152 LG ERA 146 ............. 1.300, 3.230, 12.40, 15.790, 17.360 Brownlie v State Pollution Control Commission (1992) 76 LGRA 419 ....................... 10.130 Bruce v Cole (1998) 45 NSWLR 163 ................................................................ 11.270, 17.360 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 194 LGERA 347i [2013] NSWLEC 48 .... 11.20, 11.40, 12.310, 14.290 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161 ............................................................. 1.290

C Calvert Cliffs Coordinating Committee Inc v United States Atomic Energy Commission 449 F 2d 1109 (1971) ............................................................................. 5.20 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 ................................................................................................ 17.330, 17.340 Cape York Land Council Aboriginal Corporation v Boyland (Lizard Island case) [2000] QCA 202 ................................................................... 11.220, 11.230, 14.140, 16.160 Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (2007) 157 LGERA 259 ......................................................................................................... 11.120 Carlisle Corporation v Graham (1869) LR 4 Ex 361 ...................................................... 9.110 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2009) 170 LGERA 22 ................................................................................................................ 17.270 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280 ........................................................................................................ 17.270 Carstens v Pittwater Council (1999) 111 LGERA 1 ..................... 11.150, 11.160, 11.190, 12.190 Chapman v Tickner (1995) 87 LGERA 291 ................................................................... 11.270 Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200 .......... 18.250, 18.260 Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (2010) 172 LG ERA 314 ............................................... 13.240 Chu Kheng Lim v Minister (1992) 176 CLR 1 ................................................................. 3.230 Clarke v Mercer (1859) 1 F&F 492 ................................................................................. 9.110 Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection Authority (1996) 90 LG ERA 136 ................................................ 1.270, 15.170 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LG ERA 11 ............. 11.80 Coffs Harbour City Council v Minister for Planning and Infrastructure (2012) 187 LG ERA 252 ........................................................................................................ 12.160 Commission of the European Communities v Federal Republic of Germany [1991] European Court Reports l-883 ...................................................................... 5.80 xxviii

commonwealth v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1 ............ 1.120, 3.260, 4.230, 4.240, 4.250, 4.300, 11.260, 12.50, 15.760, 16.30, 16.70 Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 ................................. 9.40, 9.200 cooper v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58 ................................. 15.370 Corbyn v Walker Corporation Pty Ltd (2012) 186 LG ERA 442 ......................... 17.70, 17.340 Corkill v Forestry Commission of New South Wales [No 2] (1991) 73 LGRA 126 ...... 10.170 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 106 LG ERA 419 ...................................................................... 17.370 Country Energy v Williams (2005) 141 LG ERA 426 ...................................................... 3.240 Crown, The v Murphy (1990) 64 AUR 593 ........................................................ 1.260, 1.270 Csillag v Woollahra Council (2011) 181 LGERA 141 ........................................................ 11.170 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 181 LG ERA 331 ···················································································································· 8.90, 9.40

D Davis v Gosford City Council (2012) 188 LG ERA 314 ..................................................... 11.90 Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LG ERA 424 ·························································································································· 17.270 Development Assessment Commission v Lawry (2011) 109 SASR 105 ..................... 13.240 Dietman v Karpany (2012) 189 LGERA 1 ........................................................................ 8.110 Director-General, Dept of Environment and Climate Change v Hudson (2009) 165 LGERA 256 ......................................................................................................... 17.70 Director-General, Dept of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) (2009) 172 LG ERA 225 .................................................................... 10.140 Director-General, Dept of Environment and Climate Change v Rae (2009) 168 LG ERA 121 ................................................................................................................. 17.70 Drake-Brockman v Minister for Planning (2007) 158 LG ERA 349; [2007] NSWLEC 490 ................................................................................................ 12.20, 18.150 D'Anastasi v Environment Protection Authority (2010) 181 LG ERA 412 ................... 17.230

E Eco-Action Kangaroo Island Inc v Kangaroo Island Council (2012) 186 LGERA 377 ···························································································································· 1.300 Embrey v Owen (1851) 6 Exch 353 ............................................................................... 9.100 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 ...................................................................................................................... 11.50 Environment and Climate Change, Department of v Olmwood Pty Ltd (2010) 173 LG ERA 366 ....................................................................................................... 10.140 Environment and Heritage, Minister for v Greentree [2003] FCA 857 .................... 15.780 Environment and Heritage, Minister for v Greentree (2004) 138 FCR 198 .............. 15.780 Environment and Heritage, Minister for v Greentree (No 3) [2004] FCA 1317 ........ 15.780 Environment and Heritage, Minister for v Queensland Conservation Council Inc (2004) 139 FCR 24; [2004] FCAFC 190 .................................................. 15.780, 18.50 Environment, Heritage and the Arts, Minister for v Rocky Lamattina & Sons Pty Ltd (2009) 167 LGERA 219 ............................................................................... 17.330 Environment Protection Authority v Ampol Ltd (1993) 81 LG ERA 433 .................... 15.370 Environment Protection Authority v BMG Environmental Group Pty Ltd (2012) 188 LGERA 324 ......................................................................................................... 17.70 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 ·························································································································· 17.230 Environment Protection Authority v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 .............................................................................................................. 15.370 Environment Protection Authority v Queanbeyan City Council (2010) 182 LGERA 36 ......................................................................................... 10.220, 10.230, 17.70 Environment Protection Authority v Ross (2009) 165 LG ERA 42 ....... 15.370, 17.70, 17.330 xxix

Table of Cases

Australian Environmental Law

Environment Protection Authority v Shannongrove Pty Ltd (2010) 176 LG ERA 31 ............................................................................................................................. 10.140 Environment Protection Authority v Truegain Pty Ltd (2012) 186 LGERA 412 ......... 10.140

F Forestry Commission of New South Wales v Corkill (1991) 73 LGRA 247 ................. 10.170 Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA 346 ............................................................................................................. 17.380 Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 93 LG ERA 249 ..................................................................................... 12.2401 15.750 1 15.760 Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 95 LGERA 229 ...................................................................................... 11.2601 15.750, 15.760 Friends of Mallacoota v Minister of Planning (2010) 173 LG ERA 332 ......................... 1.280 Friends of Merri Creek Inc v Meakins (2003) 131 FCR 175; [2003] FCA 671 ............... 16.260 Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Management (2007) 10 Butterworths Constitutional Law Reports 1059 ...... 4.30 Fundepublico v Tradenet de Colombia SA (1994) 4 International Environmental Law Reports 152 ............................................................................. 2.210

ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 170 LG ERA 373; [2009] HCA 51 .................................................................................... 4.180, 4.200, 9.100 Icelandic Fisheries (Jurisdiction) Case [1974] IUR 3 .................................................... 3.20 lkkaj Pty Ltd v District Council of the Copper Coast (2010) 106 SASR 131 ................ 16.240 Ilic v City of Adelaide (2010) 173 LGERA 304 .............................................................. 16.240 Immigration and Citizenship, Minister for v SZJSS (2010) 243 CLR 164 .................... 11.300 Immigration and Ethnic Affairs, Minister for v Teoh (1995) 183 CLR 273 ................... 12.40 Immigration and Multicultural Affairs, Minister for v Wang (2003) 215 CLR 518 ....... 11.20 Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212 ........................................................................................................ 4.100 Intellectual Forums Tirupathi v State of Andhra Pradesh [ 2006] 2 Supreme Court Journal 293 .................................................................................................... 4.100 Investments (WA) Pty Ltd v City of Swan (2012) 190 LGERA 205 ............................. 10.140

J Jarasius v Forestry Commission of New South Wales (1988) 71 LGRA 79 ................ 13.190 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2010) 175 LGERA 16 ····························································································································· 10.120 John Flynn Community Group Inc v ACT Heritage Council (2012) 187 LG ERA

G Gales Holdings Pty Ltd v Tweed Shire Council (2006) 146 LG ERA 236 ....................... 11.70 Gard v Gibsons Ltd (2004) 13 Tas R 169; 138 LGERA 157 ........................................... 15.400 Genesis Power Ltd v Franklin District Council [2005] NZRMA 541 ........................... 18.210 Gingin, Shire of v Coombe (2009) 169 LG ERA 236 ...................................................... 8.100 Gippsland Coastal Board v South Gippsland Shire Council [2008] VCAT 187 .......... 18.290 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 ........................................................................................................... 18.290, 18.300 Glenella Estates Pty Ltd v Mackay Regional Council (2010) 180 LG ERA 226 ............ 13.250 Gray v Minister for Planning [2006] NSWLEC 720 ............................. 18.1401 18.150 1 18.160 Greenpeace Australia Ltd v Redbank Power Company Pty Ltd (1994) 86 LGERA 143 ........................................................................... 12.240, 13.40, 18.100, 18.190 Greentree v Minister for the Environment and Heritage (2005) 144 FCR 388 ........ 15.780 Guerra v Italy (1998) 26 EHRR 357 ..................................................................... 2.190, 4.110

H Harper v Minister for Sea Fisheries (1989) 168 CLR 314 .............. 9.110 1 9.120, 9.140, 9.210 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) (2010) 172 LGERA 157 ......................................................................................................... 17.270 Haughton v Minister for Planning (2011) 185 LG ERA 373 .......................................... 12.160 Hills Shire Council v Kinnarney Civil & Earthworks Pty Ltd (2012) 188 LG ERA

146 ·························································································································· 16.260 Joly Pty Ltd v Director-General, Dept of Environment, Climate Change and Water (2012) 187 LG ERA 82 ..................................................................................... 17.60

K Kartinyeri v Commonwealth (1998) 195 CLR 337 ........................................................ 4.240 Kayano v Hokkaido Expropriation Committee (Nibutani Dam case) ( 1997) 38 ILM 397 .................................................................................................................... 4.120 Keech v Western Lands Commissioner (2003) 132 LGERA 23 .................................... 12.130 Kehar Singh v Union of India (1989) 1 Supreme Court Cases 204 .............................. 4.100 Kennedy v Minister for Planning (2010) 176 LG ERA 395 ................................ 11.290, 12.160 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 ........ 11.240, 11.270, 11.280, 11.290, 11.300, 12.270 Kindimindi v Lane Cove Council (2006) 143 LGERA 277 ................................. 11.270, 17.360 Koowarta v Bjelke-Peterson (1982) 153 CLR 168 ........................................................ 4.240

L

273 ·························································································································· 10.140 Hobart City Council v Resource Management and Planning Appeal Tribunal (2007) 17 Tas R 137 .................................................................................................... 11.20 Hooker v Hawkesbury City Council (1995) 88 LG ERA 403 ......................................... 12.110 Hooper v Port Stephens Council (No 3) (2010) 176 LG ERA 97 .................................. 17.270 Horta v Commonwealth (1994) 181 CLR 183 ................................................................ 3.210 Hub Action Group Inc v Minister for Planning (2008) 161 LG ERA 136 ....................... 12.120 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 ................................... 4.230 Hunter Environment Lobby Inc v Minister for Planning [ 2011] NSWLEC 221 ........... 12.160, 18.170 Hunter Environment Lobby Inc v Minister for Planning (No 2) [2012] NSWLEC

Lakshmanan v City of Norwood (2010) 174 LG ERA 428 ............................................ 16.240 Lamattina v Gould (2009) 103 SASR 587 ..................................................................... 17.40 Lansen v Minister for Environment and Heritage (2008) 163 LG ERA 145 ................. 11.140 Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (2009) 165 LG ERA 203 ............................................................................... 12.270, 15.800 Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts (2009) 168 LG ERA 220 ........................................................................................... 15.800 Leatch v National Parks and Wildlife Service (1993) 81 LG ERA 270 ............. 12.240, 12.280 Lester v Minister for Planning [2011] NSWLEC 213 ..................................................... 18.170 Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350 ........................................................................................................................... 18.50 Linlithgow Magistrates v Elphinstone 3 Karnes 331 .................................................... 9.100 Lopez Ostra v Spain (1994) 20 EHRR 277 ........................................................... 2.190, 4.110 Lord Advocate v Clyde Navigation Trustees (1891) 19 Rettie (Court of Session)

40 ···························································································································· 18.170

174 ········································································································ 9.80, 9.130, 9.140

XXX

xxxi

Australian Environmental Law

Uinsman v Finland (1995) 2 IHRR 287 .......................................................................... 2.200

M Mabo v Queensland (No 2) (1992) 175 CLR 1 ............................... 3.220, 9.140, 12.40, 14.110 Macarthur Wind Farm Pty Ltd v Moyne Shire Council (2006) 147 LGERA 62 .......... 18.220, 18.230 Macquarie Generation v Hodgson (2011) 186 LGERA 311; [2011] NSWCA 424 .......... 10.230 Magee v Boroondara City Council (2010) 177 LG ERA 92 ............................................. 4.160 Makawe Pty Ltd v Randwick City Council (2009) 171 LG ERA 165 ............................... 8.100 Maroochy Shire Council v Barns [2002] QPEC 25 ...................................................... 15.140 Maroochy Shire Council v Barns (unreported, Court of Appeal, Brisbane, 16 July 2001, Appeal No 4828 of 2001) ...................................................................... 15.140 Maroondah City Council v Fletcher (2009) 169 LGERA 407 ...................................... 10.180 Massachusetts v Environmental Protection Agency 549 US 497 (2007) .................. 18.70 Mathews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419 ....................... 15.40 Mccallum v Sandercock (2011) 183 LGERA 399 ........................................................... 15.40 McConnell Dowell Constructors (Australia) Pty Ltd v Environment Protection Authority (No 2] (2002) 54 NSWLR 39; 120 LG ERA 54 ......................................... 15.370 Millerview Constructions Pty Ltd v Eurobodalla Shire Council (unreported, Land and Environment Court (NSW), Commissioner Hussey, 19 December 2001) ........................................................................................................................ 12.110 Minister v Teoh (1995) 183 CLR 273 ........................................................ 3.240, 3.250, 5.120 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Council (2009) 166 LGERA 379 ............................................................................... 9.160 Minister Administering the Crown Lands Act v lllawarra Local Aboriginal Land Council (2011) 182 LGERA 133 .................................................................................. 9.170 Minister for Immigration and Multicultural Affairs: Ex parte Lam, Re (2003) 214 CLR 1 .................................................................................................................. 3.240 Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173 .......................................................................... 2.180, 4-40 Morgan v Commonwealth (1947) 74 CLR 421 .............................................................. 12.50 Morrison v Peacock (2002) 210 CLR 274; (2002] HCA 44 ............................................ 3.240 Murphey v Beaudesert Shire Council [2002] QDC 292 .............................................. 15-410 Murphy v The Crown (1989) 68 LGRA 286 ....................................................... 1.260, 12.110 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 .... 4.170, 4.290, 12.100, 12.110 Myers v South Gippsland Shire Council (2009] VCAT 1022 ....................................... 18.300

N NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (2011) 181 LG ERA 166 ....................................................................................... 8.90 NRMCA (Q) Ltd v Andrew (1992) 75 LGRA 64 ........................................................... 17.200 National Provincial Bank Ltd v Ainsworth [ 1965] AC 1175 ............................................ 9.30 National Trust of Victoria v Victorian Civil and Administrative Tribunal (2010) 176 LGERA 83 ......................................................................................................... 16.260 New South Wales v Commonwealth (1975) 135 CLR 337 ........................................... 4.280 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 190 LGERA 171 .............................................................................. 9.180 Newcrest v Commonwealth (1997) 147 ALR 42 .......................................................... 3.230 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 ............................ 9.200 Ngov Fairfield City Council (2009) 169 LG ERA 56 ....................................................... 17.70 Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397 .......................................................................................................................... 12.240 Noble v Cowra Shire Council (2003) 129 LGERA 120 .................................................. 11.270 North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 .......................................................................................................................... 17.380 xxxii

Table of Cases

North Queensland Conservation Council v Executive Director of Queensland National Parks and Wildlife Service [2000] QSC 172 ............................................ 17.380 Northcape Properties Pty Ltd v District Council of Yorke Peninsula (2008] SASC 57 .................................................................................................................. 18.280

0 O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 .................................................. 4.220 OneSteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) 94 SASR 357; 145 LG ERA 415 ................................................................................. 17.390 Onus v Alcoa of Australia Ltd (1982) 149 CLR 27 ....................................................... 17.380 Oshlack v Rous Water (2011) 184 LGERA 365 ............................................................ 10.200 Overland Corner Station Pty Ltd v Gould (2010) 106 SASR 428 ................................. 10.40 Owen v Casey City Council (2009) 169 LGERA 403 .................................................... 18.310

p Page v Manningham City Council (2010) 174 LGERA 48 ............................................ 17.150 Palos Verdes Estates Pty Ltd v Carbon (1991) 72 LGRA 414 ........................... 15.130, 15.170 Paradise Developments Pty Ltd v Nature Conservation Society of South Australia (1990) 59 SASR 239; 70 LGRA 139 ......................................................... 16.200 Parker v Minister for Sustainability, Environment, Water, Population and Communities (2012) 187 LG ERA 107 ........................................................................ 16.70 Parramatta City Council v Hale (1982) 47 LGRA 319 .......................... 11.240, 11.270, 15.800 Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LG ERA 231 ............................................................................................................... 10.210 Perry v Hepburn Shire Council (2007) 154 LGERA 182 ............................................... 18.230 Phosphate Co-operative Company of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134 ........................ 5.140, 15.30, 15.100, 15.140, 15.150, 17.390 Pittwater Council v Minister for Planning (2011) 184 LGERA 419 .................. 11.290, 12.190 Planning, Minister for v Moolarben Coal Mines Pty Ltd (2010) 175 LG ERA 93 ........... 17.70 Planning, Minister for v Walker (2008) 161 LG ERA 423 ........ 12.160, 12.170, 12.190, 18.250, 18.270 Plath v Fish (2010) 179 LGERA 386 ............................................................................... 17.70 Plath v Rawson (2009) 170 LGERA 253 ........................................................................ 17.70 Polites v Commonwealth (1945) 70 CLR 60 ................................................................ 3.230 Polygon Corporation v City of Seattle 578 P 2d 1309 (1978) ........................................ 5.30 Primary Industry and Energy, Minister for v Davey (1993) 47 FCR 151 ....................... 9.210 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 .............. 13.220 Protean (Holdings) Ltd v Environment Protection Authority [ 1977] VR 51 ................ 9.40 Providence Projects Pty Ltd v Gosford City Council (2006) 147 LGERA 274 ............. 12.250 Pulp Mills (Merits) case (2010) 49 ILM 1123 .................................................................. 3.60 Pumpa v Gou Iburn Murray Rural Water Corporation (2010) 172 LG ERA 412 ............ 10.120

Q Queensland Cement Ltd v United Global Cement Pty Ltd [ 1999] QPLR 167 ........... 17.200 Queensland Conservation Council Inc v Minister for the Environment and Heritage (2003] FCA 1463 ................................................................ 11.150, 15.780, 18.50 Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LG ERA 322 ............................................................................................ 18.130

R RV Moore [2001] QCA 431 .............................................................................. 17.300, 17.330 R v Schembera (2008) 187 A Crim R 484 ................................................................... 17.300 xxxiii

Table of Cases

Australian Environmental Law

R v Toohey: ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 ............................ 9.30 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 ...................... 18.330 Reeve v Hume City Council [2009] VCAT 65 .............................................................. 16.190 Reid's Farms Pty Ltd v Murray Shire Council (2010) 182 LG ERA 1 ............................. 11.290 Richardson v Forestry Commission (1988) 164 CLR 261 ........................................... 15.760 Robt Nettlefold Pty Ltd v Hobart City Council (2001) 117 LG ERA 342 ....................... 13.240 Roe v Director General, Dept of Environment and Conservation (2011) 180 LG ERA 38 ................................................................................................................ 15.170 Ronchi v Wellington Shire Council [2009] VCAT 1206 ............................................... 18.310 Rozen v Macedon Ranges Shire Council (2010) 181 LG ERA 370 ............................... 12.260

s Save Our Figs Inc v General Manager, Newcastle City Council (2011) 186 LG ERA 127 ............................................................................................................... 11.290, 12.160 Save the Ridge Inc v Commonwealth (2005) 142 LG ERA 18 ............................ 1.300, 10.30 Segal v Waverley Council (2005) 64 NSWLR 177 .......................................................... 11.20 Sharpe v Town of Vincent (2010) 181 LG ERA 114 ....................................................... 16.240 Shellharbour City Council v Minister for Planning (2012) 187 LG ERA 427 ................. 16.190 Sierra Club v Morton 405 US 727 (1972) ...................................................................... 2.230 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 ...................... 12.901 17.380 Smith v Hobsons Bay City Council (2010) 175 LG ERA 221 ............................................ 4.160 South Australia v Commonwealth (1962) 108 CLR 130 ............................................. 17.360 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 ................................. 18.370 Springhall v Kirner [1988] VR 159 ............................................................................... 16.170 Starkey v South Australia (2011) 185 LG ERA 81 ........................................................... 11.180 State Rail Authority of New South Wales v Hunter Water Board (1992) 28 NSWLR 721 ............................................................................................................. 15.370 Sustainability, Environment, Water, Population and Communities, Minister for v Fullport Pty Ltd (2011) 194 FCR 490 .................................................................... 10.140 Swift v SAS Trustee Corporation [2010] NSWCA 182 ................................................. 11.300 Sydney Water Corporation v Turano (2009) 168 LG ERA 451 ...................................... 8.100

T Taip v East Gippsland Shire Council (2010) 177 LG ERA 236; [2010] VCAT 1222 ......... 18.320 Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LG ERA 1 ....... 12.1801 18.20, 18.80, 18.240 Tasmanian Heritage Council v Cita Property Group Pty Ltd (2010) 181 LG ERA 429 ......................................................................................................................... 16.260 Taylor v North Queensland Electricity Commission ( unreported, Federal Court of Australia, Drummond J, 18 October 1996) ........................................................ 9.190 Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 ....... 12.1501 12.1601 12.2601 12.270 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LG ERA 195 ........................................................................................................................... 12.190 Thirteenth Beach Coast Watch Inc v Environment Protection Authority (2009) 178 LGERA 232 ........................................................................................................ 17.390 Thornton v Adelaide Hills Council (2006) 151 LG ERA 1 ................................... 18.601 18.350 Three Pillars Property Group v Brimbank City Council (2012) 188 LG ERA 351 ......... 16.260 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 ...... 11.50, 11.90 Toomer v Witsell 334 US 385 (1948) ............................................................................ 9.140 Tuna Boat Owners Association of South Australia Inc v Development Assessment Commission (2000) 110 LGERA 1 ........................................... 11.2101 12.240

xxxiv

u Ulan Coal Mines v Minister for Mineral Resources (2008) 161 LG ERA 391 .............. 14.280 United States of America v Canada (1941) 1 International Environmental Law Reports 231 ................................................................................................................ 3.40 United States of America v Canada (1941) 3 RIM 1905 ............................................... 1.110

V Vellore Citizens' Welfare Forum v Union of India (1996) 5 Supreme Court Cases 647 ................................................................................................................. 4.100 Village McEvoy Pty Ltd v Sydney City Council (No 2) (2010) 176 LGERA 119 ............ 11.160, 11.170, 11.290, 12.190

w Wakool Shire Council v Garrision Cattle Feeders Pty Ltd (2010) 177 LG ERA 282 ..... 10.140 Walden v Hensler (1987) 163 CLR 561 .......................................................................... 9.130 Walker v Shire of Flinders [ 1984] VR 409 ................................................................... 10.160 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ......................................... 17.20 Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LG ERA 112 .... 10.190 Weal v Bathurst City Council (2000) 111 LG ERA 181 ..... 11.240 1 11.270, 11.2801 11.290, 11.300 Western Mining Corporation Ltd v Commonwealth (1994) 50 FCR 305; 121 ALR 661 .................................................................................................................... 9.30, 9-40 Westfield Ltd v Manningham City Council (2011) 182 LGERA 444 ............................. 12.240 White v Patterson (2009) 171 LG ERA 28 ..................................................................... 10.130 Wilderness Society Inc v Turnbull [2007] FCA 1178 ................................................... 15.790 Wilderness Society of WA Inc v Minister for Environment (2013) 196 LG ERA 234; [2013] WASC 307 ............................................................................................. 15.170 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage [2006] FCA 736 .......... 15.780 1 18.120 Williams v Minister for Planning (2009) 164 LGERA 204 ........................................... 11.290 Window v Phosphate Co-operative Co of Australia [1983] 2 VR 287 ....................... 15.380 Witheyman v Simpson [2011] 1 Qd R 170 .................................................................... 10.140 Witheyman v Van Riet [2008] 2 Qd R 587 .................................................................. 10.140 Wollongong City Council v Ensile Pty Ltd (2008) 71 NSWLR 563 .............................. 10.140

X Xstrata Coal Queensland Pty Ltd v Friends of the Earth Brisbane Co-op Ltd [2012] QLC 013 ........................................................................................... 12.3001 18.180 Xstrata Coal Queensland Pty Ltd, Re [2007] QLRT 33 ............................................... 18.130

y Yannerv Eaton (1999) 201 CLR 351; 105 LGERA 71 .................................. 8.110, 9.140, 9.150 Yates Security Services Pty Ltd v Keating (1990) 98 ALR 21 ............................. 1.300, 12.70 Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1; 98 ALR 68 .......... 12.70, 17.380

z Zampatti v Western Australian Planning Commission (2010) 176 LG ERA 150 .......... 13.240

XXXV

TABLE OF STATUTES COMMONWEALTH Aboriginal Land Rights Act 1983 s 36(1)(b): 9.160 Aboriginal and Torres Strait Islander Heritage Protection Act 1984: 4.300 Administrative Decisions (Judicial Review) Act 1977: 11.270 1 17.380 Aircraft Noise Levy Act 1995: 4.260 Aircraft Noise Levy Collection Act 1995: 4.260 Australian Centre for Renewable Energy Act 2010: 4.320 Australian Heritage Commission Act 1975: 4.290 s 30: 1.300, 12.70 s 30(1): 12.70 Australian National Registry of Emissions Units Act 2001: 18.430 Australian Renewable Energy Agency Act 2011: 4.320 Bounty (Fuel Ethanol) Act 1994 s 3: 4.260 s 7: 4.260 s 10: 4.260 Building Energy Efficiency Disclosure Act 2010: 4.320 Carbon Credits (Carbon Farming Initiative) Act 2011: 4.320 1 18.170, 18.410 s 3(3): 18.410 s 3(4): 18-410 s 5: 18.420 s 11: 18.420 s 12: 18.420 s 15(2): 18-420 S 22: 18.420 s 27: 18.420 s 27(4)(a): 18.420 s 27(4)(c): 18.420 s 27(4)(d): 18-420 s 41(1): 18.420 S 41(3): 18-420 s 53: 18-420 s 54: 18-420 s 150: 18.420

Clean Energy Act 2011: 4.320, 18.170 1 18.410, 18.430 s 3(a): 4.320 s 3(c): 18.410 s 3(d): 18.410, 18.430 s 4: 18.430 s 14(1): 18.430 s 19: 18.430 s 20(1): 18.430 s 21(4): 18.430 s 94: 18.430 s 103: 18.430 s 103A: 18.430 s 103A(1): 18.430 s 104: 18-430 s 105: 18-430 s 106: 18.430 s 118: 18.430 s 121: 18-430 s 128: 18.430 s 128(2): 18.430 s 128(3): 18.430 s 128(4): 18-430 s 128(5): 18.430 s 134(2): 18.430 Clean Energy Finance Corporation Act 2012: 4.320 s 10: 4.320 Clean Energy (Unit Shortfall Charge-General) Act 2011: 18-430 Climate Change Authority Act 2011: 4.320 Commonwealth of Australia Constitution Act 1901: 3.260, 4.140, 4.210, 4.280 1 9.40 s 51: 4.170, 4.210, 4.320, 12.50 s 51(i): 4.190, 4.210, 4.320, 4.330, 12.50 s 51(ii): 4.260 s 51(ix): 15.10 s 51(x): 4.170, 4.210 s 51(xx): 4.210, 4.320, 4.330 s 51(xxvi): 4.210, 4.240 s 51(xxix): 3.260, 4.210, 12.40 s 51(xxxi): 4.200, 9.40, 9.210, 18.370 s 51(xxxvi): 4.200 s 90: 4.260 s 96: 4.200, 4.260 s 98: 4.190 5 100: 4.190, 12.50 5 102: 4.190 s 109: 12.50 xxxvii

Table of Statutes

Australian Environmental Law

Commonwealth of Australia Constitution Act 1901 - cont

s 122: 4.240 Corporations Act 2001 s 299(1)(f): 8.50 Criminal Code 1995 s 3.1: 10.130 s 5.s: 10.130 Diesel and Alternative Fuels Grants Scheme Act 1999 s 4: 4.260 Environment (Financial Assistance) Act 1977: 4.210 Environment Protection (Impact of Proposals) Act 1974: 1.210, 4.290, 5.180, 12.70, 12.100, 13.30, 15.710, 15.730 S 3: 1.210 s 5: 1.300, 4.290, 12.70, 13.30 s 6: 4.290 s 8: 12.70 Environment Protection (Sea Dumping) Act 1981: 4.280 Environment Protection and Biodiversity Conservation Act 1999: 1.220, 1.230, 1.290, 1.300, 3.260, 4.290, 4.300, 4.310, 4.330, 5.180, 7.330, 7.420, 10.30, 11.30, 11.130, 11.260, 12.270, 12.300, 13.50, 13.120, 13.130, 13.150, 13.200, 13.210, 15.710, 15.730, 15.750, 15.760, 15.770, 15.780, 15.790, 15.800, 16.30, 16.70, 16.250, 16.260, 17.260, 17.390, 18.120, 18.140 s 3: 7.330, 15.740 s 3(1): 5.180, 11.30, 16.70 s 3(1)(a): 3.260, 7.330, 12.270, 15.730 s 3(1)(b): 5.180, 7.330, 15.740 s 3(1)(c): 16.70 s 3(1)(e): 12-40 s 3(2): 5.180, 11.30 s 3A: 5.180, 7.330, 11.30, 12.270, 15.740 s 3A(a): 16.250 s 3A(b ): 15.740, 16.250 s 12: 1.230, 10.30, 15.730, 15.770, 16.70 s 12(1): 10.30, 15.730 s 12(2): 15.730 ss 12 to 15A: 16.250 s 14: 3.260 s 15A: 1.230, 10.30, 15.730, 16.70 s 15B: 1.230 s 15C: 1.230 s 16: 1.230, 16.70 s 17: 3.260 xxxviii

s 17B: 1.230 s 18: 1.230, 15.790, 16.70 s 18(3): 15.790 s 18A: 1.230 S 20: 1.230, 16.70 s 20A: 1.230 s 21: 1.230 s 22A: 1.230 s 23: 1.230, 16.70 s 24: 3.260 s 24A: 1.230 s 24B: 5.180 s 24D: 15.730 s 24E: 15.730 s 25(1): 15.730 s 25(5): 4.310, 15.730 s 25(5)( e): 3.260 s 28: 1.300 s 28(1): 1.300 s 38: 15.790 s 38(1): 15.790 s 42( c): 15.790 s 67: 11.130 s 68: 15.740 s 69: 15.740 s 70: 15.740 s 75: 11.130, 11.150, 15.780, 15.800, 15.810, 18.120, 18.160 s 75(1): 11.130 S 75(2): 11.30, 18.50, 18.160 s 75(2)(a): 15.740, 18.120 s 75(2)(b ): 15.740 s 75(2B): 15.790 s 87(1): 13,210, 15.740 ss 101 to 105: 13.210 s 102(1): 13.210 s 102(2)(b ): 13.210 s 104(3): 13.210 s 130(1): 15.740 s 132: 15.800 s 133: 15.800 s 133(1): 15.740 s 134(4)(a): 11.140 s 136: 5.180, 15.740, 15.800, 15.810 s 136(1): 11.30, 12.270 s 136(1)(a): 1.290, 15.740 s 136(1)(b): 5.180, 15.740 s 136(2): 7.330, 11.30, 12.270 s 136(2)(a): 5.180, 15.740, 16.250 ss 136(2)(c) to (e): 15.740 s 136(4): 11.30, 15.740 s 136(5): 15.740 s 137: 15.740 s 145: 15.800 s 146(1): 13.50 s 148: 13.50 s 171: 16.70 ss 171 to 174: 13.130

Environment Protection and Biodiversity Conservation Act 1999 - cont

s 176(1): 13.130 s 176(4)(b) to (d): 13.130 5 176(5): 13.130 5178: 16.70 s 181: 16.70 s 207A: 16.70 s 209: 16.70 5 209(3): 3.260 s 248: 16.70 5 268: 13.130 5 269(1): 13.130 5 269(2): 13.130 s 269A: 16.70 s 269A(2): 13.130 s 270A(1): 13.130 s 270A(1)(b): 13.130 s 270B: 16.70 s 285: 16.70 5 285(1): 13.130 5 285(5): 13.130 s 286: 13.130 s 301A( c): 4.310 s 303EB: 16.70 5 316(1): 16.70 s 321: 16.70 5 323: 16.70 5 324C: 4.260 s 324D: 4.260 s 324ZB: 4.210 s 328(1): 16.70 5 333: 16.70 5 335: 16.70 5 340: 16.70 s 344: 16.70 5 344(1): 16.70 S 347: 16.70 5 348: 16.70 5 354: 16.70 s 357(2): 16.70 5 362(1): 13.130 5 362(2): 13.130 5 362(3): 13.130 s 366: 16.70 5 371: 13.130 5 390C: 13.130 s 390E: 13.130 s 390E(1)(a): 13.130 s 390E(1)(b): 13.130 s 390E(1)(c): 13.130 s 390E(1)(d): 13.130 s 390E(1)(g): 13.130 s 390E(1)(j): 13.130 s 390E(1)(k): 13.130 5 391: 5.180, 7.330, 15.740 5 391(1): 11.30, 12.270, 15.740 s 391(2): 12.230, 12.270, 15.740

5 391(3): 15.740 5 464: 17.250 5 475: 10.30, 17.390 s 475(1): 17.260 s 475(1)(a) to (c): 17.260 5 475(6): 17.260 s 475(6)(b): 17.390 s 475(7): 17.260 5 487: 17.390 s 487(2)(b ): 17.390 5 495: 17.300 5 499: 17.250 ss 516 to 516B: 8.50 5 520(3): 16.70 5 523(1): 15.730 5 524: 1.300, 15.730 5 524(1): 1.300 5 524(2): 1.300, 10.30 s 524A: 10.30, 15.730 s 528: 1.220, 3.260, 5.180, 16.250 Ch 2: 13.130, 16.250 Ch 2, Pt 3, Div 1: 3.260 Ch 5: 16.250 Pt 3= 10.30, 11.130, 15.790, 16.70, 18.160 Pt 3, Div 1: 15.730 Pt 7: 15.740 Pt 8: 15.740 Pt 9: 10.30, 15.740 Pt 10: 13.50 Pt 15: 16.70 Pt 17: 17.50, 17.230 Sch 4: 13.210 Environment Protection and Biodiversity Conservation Amendment Act 2013: 4.330 Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Act 2012: 4.330 Environment Protection and Biodiversity Conservation Regulations 2000: 15.740, 16.250 reg 4.03: 1.230 reg 10.03H: 16.70 Sch 2: 1.230, 15.740 Sch 2, para 4: 15.740 Sch 2, para 5: 15.740 Sch 2, para 5.05: 1.230 Sch 2, para 5.05( c): 16.250 Sch 4: 15.740 Sch 4, para 1(f): 13.210 Sch 4, para 2: 15.740 Sch 4, para 2(g): 13.210 Sch 4, para 2(g)(ii): 13.210 xxxix

Table of Statutes

Australian Environmental Law

Environment Protection and Biodiversity Conservation Regulations 2000 - cont

Sch 4, para 3: 15.740 Sch 4, para 3(c): 13.210 Sch 4, para 4: 15.740 Sch 4, para 7(a) to ( c): 13.210 Sch 4, para 7(d): 13.210 Sch 5: 16.70 Sch 5A: 16.70 Sch 6: 16.70 Sch 7: 16.70 Sch 7A: 16.70 Sch 8: 16.70, 16.250 Sch 8, para 3.02: 16.250 Sch 8, para 3.06: 16.250 Sch 8, para 4.02: 16.250 Sch 8, para 6.01: 16.250 Sch 8, para 6.02: 16.250 Sch 8, Pt 1: 16.70 Sch 8, Pt 2, para 1: 16.70 Sch 8, Pt 2, para 1.02: 16.70 Sch 8, Pt 2, para 1.04: 16.70 Sch 8, Pt 2, para 2: 16.70 Sch 8, Pt 2, para 2.01: 16.70 Sch 8, Pt 2, para 2.03: 16.70 Fisheries Act 1952: 4.280 Fisheries Management Act 1991: 7.190, 9.210, 13.50 s 3: 4.280, 7.190, 11.30 s 3(1): 7.190, 11.30, 11.190 s 3(1)(b): 7.190, 11.190 s 3(1)(c): 11.190 s 3(2): 7.190, 11.30, 11.190 s 3(2)(a): 7.190, 11.190 s 3(2)(b): 7.190, 11.190 s 3(2)(c): 7.190 s 3A: 7.190 s 17(5)(a): 7.190 s 17(5AA): 7.190 s 17(6)(a): 9.210 s 17(9): 7.190 s 48(1): 9.210 s 78(1): 7.600 Fuel Quality Standards Act 2000 s 4(1): 4.300 s 12(1)(b): 4.300 Great Barrier Reef Marine Park Act 1975: 4.290, 5.180, 7.420, 13.140, 15.760, 16.30, 16.60 s 2A: 5.180, 7-420 s 2A(1): 5.180, 7-420 s 2A(2): 7.420 s 2A(2)(a): 5.180 s 3M: 7.420 s 3AB: 7.420 xl

ss 5(1)(a) to (c): 4.240 s 7(3 ): 7.420 s 32: 7.420 s 32(1): 7.420, 13.140, 16.60 s 32A: 13.140 ss 32 to 32C: 5.180 s 34(9): 13.140 s 35A: 7.420 s 36(1): 13.140 s 36(2): 13.140 s 38A: 13.140 s 38B: 13.140 s 38C: 13.140 s 38CA(1): 10.130 s 38F(1)(a) to (h): 13.140 s 38F(1)(j): 13.140 s 38F(1)(k): 13.140 Pt V: 16.60 Pt VA: 16.60 Greenhouse and Energy Minimum Standards Act 2012: 4.320 s 4(a): 4.320 s 5: 4.320 Hazardous Waste (Regulation of Exports and Imports) Act 1989: 4.300 Illegal Logging Prohibition Act 2012 s 8: 4.320 Industrial Chemicals (Notification and Assessment) Act 1989: 4.3000 s 3: 4.300 s 4: 4.300 Morgan-Whyalla Waterworks Agreement Act 1940: 4.260 Murray-Darling Basin Act 1983 Sch 1: 16.50 Sch 2: 16.50 National Environment Protection Council Act 1994: 15.10 National Environment Protection Measures (Implementation) Act 1998: 15.10 National Environment Protection (National Pollutant Inventory) Measure 1998: 8.50 National Greenhouse and Energy Reporting Act 2007: 4.320 s 4: 4.320 s 19: 4.320 National Parks and Wildlife Conservation Act 1975: 4.290, 5.180, 13.120

National Radioactive Waste Management Act 2012 s 3: 4.320 National Water Commission Act 2004: 4.190 National Water Resources (Financial Assistance) Act 1978: 4.210 Native Title Act 1993: 9.140, 9.190, 11.140, 16.270 s 3: 11.140 s 211: 9.140 s 235(5)(b): 9.190 Natural Heritage Trust of Australia Act 1997: 4.260, 15.590 s 4: 4.260 s 8(a): 4.260 s 8(b ): 4.260 s 8( c): 4.260 s 8( d): 4.260 s 8( e ): 4.260 s 8(f): 4.260 s 8(g): 4.260 s 8(h): 4.260 s 10: 4.260 s 11: 4.260 s12: 4.260 s 13: 4.260 s 14: 4.260 s 15: 4.260 s 16: 4.260 s 17: 4.260 s 19: 4.260 s 20: 4.260 s 21: 4.260 Natural Resources Management (Financial Assistance) Act 1992: 4.190, 4.260 s 3(2): 4.260 s 4( 1): 4.260 Offshore Petroleum and Greenhouse Gas Storage Act 2006: 4.320, 10.70, 14.270, 18.390 s 3: 14.270, 18.390 s 3(a): 10.70 s 7: 10.70 s 21: 18.390 ss 163(3) to (7): 14.270 s 189(1): 10.70 s 190(1): 10.70 s 190(3): 10.70 s 190(5): 10.70 s 266: 14.270 s 312: 18.390 s 321(1): 18.390

ss 321(3) to (8): 18.390 s 356(1): 18.390 s 357: 18.390 s 357(1): 18.600 s 358(3)(i): 18.390 s 358(14)(j): 18.390 s 359(1): 18.390 s 360: 18.390 s 374(1): 18.390 s 388(2): 18.390 s 399(1): 18.700 ss 399 to 401: 18.390 s 438: 14.270 s 460(2)(d): 18.390 s 524: 18.390 s 529(3): 18.390 s 538: 18.390 s 586: 4.280 s 586(2): 10.70 s 587: 4.280 s 593(2)(f): 18.390 s 780: 14.270 s 781: 14.270 s 782: 14.270 Pt 6.4: 14.270 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009: 10.30, 14.270 reg 6(1): 10.30 reg 7(1)(a): 10.30 reg 7(2): 10.30 reg 8(1): 10.30 regs 9 to 11: 10.30 reg 11: 10.30 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989: 4.300, 15.10 s 3: 4.300 s 37(1)(b): 4.300 ss 37(2)(a) to ( c): 4.300 Petroleum (Submerged Lands) Act 1967: 4.280, 9.40 s 157: 14.270 s 157(1): 14.270 s 157(2): 14.270 Petroleum (Submerged Lands) (Management of Environment) Regulations 1999: 4.280 Protection of Movable Cultural Heritage Act 1986: 4.300 Protection of the Sea (Civil Liability) Act 1981: 4.280 xii

Table of Statutes

Australian Environmental Law

Protection of the Sea (Oil Pollution Compensation Fund) Act 1993: 4.280 Protection of the Sea (Powers of Intervention) Act 1981: 4.280 Protection of the Sea (Prevention of Pollution from Ships) Act 1983: 3.240 5 8: 3.240 s 33(1)( c): 3.240 Pt II: 3.240 Regional Forest Agreements Act 2002: 15.790 s 6(4): 15.790 5 42: 15.790 cl 68: 15.790 Renewable Energy (Electricity) Act 2000: 4.260, 4.320, 10.60, 12.180, 14.270, 18.80, 18.240 5 3: 4.260 ss 31 to 33: 4.260 5 35: 4.260, 10.60 s 36: 4.260 s 36(1): 10.60 5 37: 4.260, 10.60 Renewable Energy (Electricity) (Charge) Act 2000: 10.60 Resource Assessment Commission Act 1989: 13.50 5 3(1): 13.50 5 7: 13.50 5 8: 13.50 5 16(1): 13.50 Sea Installations Act 1987: 4.280 Seas and Submerged Lands Act 1973: 4.280 Softwood Forestry Agreement Act 1972: 4.260 States Grants (Nature Conservation) Act 1974: 4.210 Tasmania Agreement (Hydro-Electric Power Development) Act 1968: 4.260 Tasmanian Native Forestry Agreement Act 1979: 4.260 Torres Strait Fisheries Act 1984: 13.50 Water Act 2007: 4.320, 7.130, 16.50 5 3: 7.130 s 3(a): 16.50 s 3(c): 7.130 5 4: 3.260, 4.320 5 4(2): 7.130 xiii

5 9(1): 3.260, 12.50 5 11: 12.50 5 20: 7.130 s 21: 7.130 s 21(2)(a): 16.50 5 21(4): 7.130 s 36(1): 3,260 5 60(1): 3,260 s 86A: 7.130 s 86A(1): 7.130 Western Australia (South-west Region Water Supplies) Agreement Act 1965: 4.260 Wet Tropics of Queensland World Heritage Area Conservation Act 1994: 13.150, 16.30, 16.60 Wildlife Protection (Regulation of Exports and Imports) Act 1982: 4.300 World Heritage Properties Conservation Act 1983: 1.120, 3.260, 4.300, 12.240, 13.120, 15.750, 15.760, 16.30 s 13(1): 11.260, 15.760

AUSTRALIAN CAPITAL TERRITORY Climate Change and Greenhouse Gas Reduction Act 2010: 18.40 5 6(1): 18.40 5 7(1): 18,40 5 9(1): 18.40 s 10(1): 18.40 s 14(1): 18,40 s 14(2)(a): 18.40 s 14(2)(b ): 18.40 s 14(2)( c): 18,40 516: 18.40 5 17: 18,40 s 23: 18.40 5 23(1): 18.40 s 23(1)(a) to (c): 18.40 s 23(2)(a): 18,40 Environment Protection Act 1997: 7.300, 15,410, 15.460, 15.530, 17.240, 17.250 5 2: 15.330 5 2(1): 15.230, 15.250 s 2(1)(a): 7-300, 15.230 s 2( 1)(b ): 15.230 s 2(1)(g): 15.230 5 2(2): 15.230 5 3: 15.70 s 3(1)(a): 15.330 s 3(1)(b): 15.330 s 3(1)(g): 15.330 5 3(2): 7-300 5 22: 15.410

Environment Protection Act 1997 -

s 22(1): 15.410 s 22(2): 15.410 s 22(2)(a): 15.410 5 24: 15,460 5 30: 15-460 5 34: 15.600 5 35: 15.600 s 35(a): 15.600 s 35(b ): 15.600 5 36: 15.600 s 36(a): 15.600 s 36(c): 15.600 s 37: 15.600 5 37(1): 15.600 s 37(2): 15.600 5 42: 15.330 5 42(1): 15.330 5 42(2): 15.330 s 49: 15.330 s 69(1)(a)(i): 15.530 s 69(1)(a)(ii): 15.530 s 69( 1)(b ): 15.530 5 72(1): 15.530 s 72(2)(b ): 15.530 s 72(3): 15.530 5 72(4): 15.530 s 74: 17.240 5 75: 17.240 5 76: 17.240 5 78: 17.240 s 91D(1)(b): 17-250 s 91K(1): 17.250 s 91L: 17.250 s 91M: 17.250 s 91N: 17.250 s 91P: 17.250 5 91Q: 17.250 5 96: 17.230 s 113: 17.320 5125: 17.250 5 127(1): 17.260 s 127(1)(a): 17.260 s 127(1)(b ): 17.260 5 133: 17.230 ss 137(1) to (3): 15,410 ss 138(1) to (3): 15.410 ss 139(1) to (3): 15.410 s 143(a): 15.410 s 143(b ): 15.410 s 147: 17.300 5 153(1): 15,410 5 153(2): 15.410, 17.300 s 153(2)(a)(i): 15.410 s 153(2)(a)(ii): 15.410 s 153(2)(a)(iii): 15.410 s 153(2)(b)(i): 15,410 s 153(2)(b )(ii): 15,410

cont

s 153(2)(b )(iii): 15,410 s 153(2)(b )(iv): 15,410 s 153(2)(b )(v): 15.410 5 157: 17.310 5 157(1): 17.310 s 157(1)(a): 17.310 s 157(1)(b): 17.310 s 157(1)(c): 17.310 s 157(1)(d): 17.310 s 157(2)(a): 17.310 s 157(2)(b ): 17.310 5 158: 17.330 5 160: 17.250 5 164: 17.320 Pt 6: 15.600 Sch 1: 15.330 Heritage Act 2004: 16.260 s 10: 16.260 Land (Planning and Environment) Act 1991 S 8: 11.120 5 231: 11.120 Magistrates Court (Environment Protection Infringement Notices) Regulation 2005 reg 7: 17.290 reg 12: 17.70 Sch 1: 17.70 Nature Conservation Act 1980: 13.90, 16.150, 17.50 s 2: 16.150 5 18: 16.150 5 26(1): 13.90 s 26(2): 16.150 5 28: 16.150 5 34(1): 16.150 5 34(2): 16.150 5 35(2): 16.150 5 40: 13.90 5 40(2): 16.150 5 58: 16.150 5 60(1): 16.150 5 60(3): 16.150 s 62: 16.150 5 79: 17.50 5 130: 17.50 5 130(2): 17.50 5 130(3): 17.50 s 132(1)(b): 17.50 5 133(2): 17.50 5 134(4): 17.80 s 135(3): 17.80 s 135(5): 17.80 Pt 2: 16.150 Pt 3: 16.150 xliii

Australian Environmental Law

Nature Conservation Act 1980 -

Table of Statutes

cont

Pt4: 16.150 Pt 8: 16.150 Pt 9: 16.150 Pt 11: 16.150 Pt 14: 16.150 Planning and Development Act 2007: 13.180, 13.240 s 6(a): 13.240 s 48: 13.240 s 51(1)(a): 13.240 s 52(1): 13.240 s 105: 13.240 s 350: 17.160 s 361: 17.160 s 366(4): 17.160 s 381(2): 17.160 s 389: 17.120 s 389(1)(b): 17.120 s 389(1)(c): 17.120 ss 389 to 393: 17.120 s 391: 17.120 s 392: 17.120 s 392( c): 17.120 s 398: 17.120 S 400(2): 17.120 s 406: 17.120 Pt 1.2.3: 17.120

NEW SOUTH WALES Aboriginal Land Rights Act 1983: 9.160, 15.950 s 3: 9.160 s 36: 9.170 s 36(1)(b): 9.160 s 36(1)(c): 9.170 s 45(2): 9.170 s 45(12): 9.170 Animal Research Act 1985: 15.950

Conveyancing Act 1919 s 87A: 10.290 s 88AB(2): 10.290 Crimes (Sentencing Procedure) Act 1999: 17.340 s 3A: 17.330 s 21A: 17.330 Crown Lands Act 1989: 5.160, 7.30, 14.80, 15.900 ss 33(1(a) to (c): 14.80 s 6: 14.80 s 9: 14.80 s 10: 5.160, 7.30, 12.60, 14.80 s 10(a): 14.80 s 1o(b ): 5.160, 14.80 s 10( c): 5.160 s 11: 7.30, 14.80 s 11(a): 5.160, 14.80 s 11(b): 5.160, 14.80 s 11(e): 5.160, 14.80 s 11(f): 7.30, 14.80 s 12(1): 5.160, 12.60 s 30(1): 14.80 s 30(2): 14.80 S 32(1): 7-30 s 32(2): 7-30, 14.80 s 33(1): 14.80 s 33(1)(c): 7-30 s 34: 14.80 s 52: 14.80 s 59C: 10.290 s 80: 14.80 s 87: 14.80 Pt 1: 14.80 Pt 2: 14.80 Pt 3: 14.80 Crown Lands (Continued Tenures) Act 1989: 15.950 Dangerous Goods (Road and Rail Transport) Act 2008: 15.900

Biological Control Act 1985: 15.950 Brigalow and Nandewar Community Conservation Area Act 2005: 15.900 Catchment Management Authorities Act 2003: 15.900 Clean Waters Act 1970: 15.370 s 16(1): 10.130, 15.370 s 16(3): 10.130 Coastal Protection Act 1979: 15.900 Commons Management Act 1989: 9.180 Contaminated Land Management Act 1997: 15.900 xliv

Dividing Fences Act 1991: 15.950 Electricity Supply Act 1995: 14.300, 15.950 s 3: 14.300 s 14: 14.300 s 33: 14.300 s 97B: 14.300 s 97BA: 14.300 s 97BB: 14.300 s 97BD(1): 14.300 s 97BD(2): 14.300 s 97BD(3): 14.300 s 97CA: 14.300 s 97CA(1): 18.80 s 97CA(2): 18.80

Electricity Supply Act 1995 -

cont

Pt 8A: 12.180, 18.80, 18.240 Sch 2, s 4(3): 14.300 Sch 2, s 6(9): 14.300 Energy Services Corporations Act 1995: 14.300 s 5(1)(a): 14.300 s 5(1)(b): 14.300 s 5(2): 14.300 s 6B(1)(a): 14.300 s 6B(1)(b): 14.300 s 6B(2): 14.300 s 8(1)(a): 14.300 s 8(1)(b): 14.300 s 8(2): 14.300 Sch 1: 14.300 Energy and Utilities Administration Act 1987: 14.300, 15.900 s 5(1): 14.300 s 11: 14.300 s 11(1)(a): 14.300 s 11(1)(b): 14.300 s 11(1)(d): 14.300 s 11(1)(e): 14.300 s 12: 14.300 s 34E: 14.300 s 34F(a): 14.300 s 34F(b ): 14.300 s 34F(c): 14.300 s 34G(1)(a): 14.300 s 34J(1): 14.300 s 34Q(2): 14.300 s 34V(3): 14.300 s 34V(4): 14.300 Environmental Planning and Assessment Act 1979: 1.210, 5.160, 7.230, 8.90, 8.100, 10.190, 10.200, 12.110, 12.170, 12.180, 12.190, 12.260, 13.40, 13.190, 13.220, 13.240, 14.280, 14.290, 15-450, 15.950, 17.70, 18.100, 18.140, 18.170, 18.240, 18.270 s 4: 13.40 s 4(1): 1.210 s 5: 13-40, 16.240 S 5(a): 5.160, 11.30, 11.260 s 5(a)(i): 5.160, 13.240 s 5(a)(ii): 13.240 s 5( a)( vi): 5.160, 13.240 S 5(a)(vii): 5.160, 11.150, 12.140, 13.240 s 5(c): 11.170 s 5A: 11.260 s 7: 11.30, 11.260 s 24: 5.160, 13.240 s 28: 8.90 s 36: 13.240 s 750: 18.270

s 75V(1)(c): 14.280 s 78A(8)(a): 13.190 s 78A(8)(b ): 11.70, 11.90, 13.190 s 79A(2): 11.170 s 79C: 11.80, 11.100, 11.260 s 79C(1): 11.150, 11.160, 11.260, 12.190 s 79C(1)(b): 11.100 s 79C(1)(e): 12.140 s 79((2): 11.260 s 111: 10.200 S 112: 10.200 s 112(1): 1.250 s 112(1)(a): 13.190 s 115K(1): 13.190 s 118B: 17.120 s 121B: 17.140 s 122(a): 17.190 s 122(b): 17.190 s 123(1): 17.190 s 124: 17.20, 17.190 s 125(1): 17.70 s 127A: 17.110 Pt 3A: 12.310 Pt 4: 10.210 Pt 6, Div 2A: 17.140 Environmental Planning and Assessment Act 1979 S 5(a): 18.200 Environmental Planning and Assessment Regulation 1994 Sch 3: 13.190 Environmental Trust Act 1998: 15.590, 15.900 s 7(a): 15.590 s 7(b ): 15.590 s 7(c): 15.590 s 7(d): 15.590 s 8(a): 15.590 s 8(c): 15.590 s 18(1): 15.590 s 19(1): 15.590 Environmentally Hazardous Chemicals Act 1985: 15.900 Exhibited Animals Protection Act 1986: 15.950 Fertilisers Act 1985: 15.950 Filming Approval Act 2004: 15.900 Fisheries Management Act 1994: 15.900 s 3: 7.180 s 3(1): 7.180 s 3(2): 7.180 xiv

Table of Statutes

Australian Environmental Law

Fluoridation of Public Water Supplies Act 1957: 10.200 s 6(1): 10.200 s 6(1A): 10.200 Forestry Act 2012: 14.180, 15.950 s 3(1): 14.180 s 5: 14.180 s 10: 14.180 s 10(1): 14.180 s 10(1)(c): 14.180 s 10(2): 14.180 s 11: 14.180 s 11(1)(g) and (h): 14.180 s 11(4): 14.180 s 13: 14.180 s 13(2)(a): 14.180 s 13(2)(b): 14.180 s 13(2)(c): 14.180 s 13(2)(d): 14.180 s 13(3)(a): 14.180 s 39(1): 14.180 s 60: 14.180 s 61(2): 14.180 s 69A(1): 14.180 s 69A(2): 14.180 s 69A(4): 14.180 s 698(1): 14.180 s 698(2): 14.180 s 698(3): 14.180 s 69C(2)(a): 14.180 Pt 5A: 14.180 Pt 58: 14.180 Forestry Restructuring and Nature Conservation Act 1995: 15.900 Forestry Revocation and National Park Reservation Act 1996: 15.900 Forestry Revocation and National Parks Reservation Act 1983: 15.900 Forestry Revocation and National Parks Reservation Act 1984: 15.900 Gaming Machines Act 2001: 10.190 s 3(1): 10.190 s 209(3): 10.190 s 209(3)(b ): 10.190 Heritage Act 1977: 15.950, 16.260, 17.90 s 4A(1): 16.260 s 21(1)(c): 17.90 s 24(1): 17.90 s 44(1): 17.90 s 120: 17.90 S 120(1): 17.90 s 120K: 17.90 s 148: 17.90 xlvi

s 151: 17.90 s 153(1): 17.90 s 156: 17.90 s 159: 17.90 s 161(1): 17.90 Hunter Water Act 1991: 15.950 Impounding Act 1993: 15.950 Lake lllawarra Authority Act 1987: 15.900 Land and Environment Court Act 1979: 15.950 s 39(4 ): 12.240 Land and Environment Court Rules 2007 r 4.2(1): 17.270 Lane Cove National Park (Sugarloaf Point Additions) Act 1996: 15.900 Liquor Act 1982: 10.190 Local Government Act 1993: 8.100, 15.950 Lord Howe Island Aerodrome Act 1974: 15.900 Marine Parks Act 1997: 11.80, 15.900 Marine Pollution Act 1987: 3.240, 15.950 Marine Pollution Act 2012: 15.190 Mine Subsidence Act 1961: 10.120 s 12(1)(a): 10.120 Mining Act 1992: 14.280, 15.950 s 62(1): 14.280 s 62( 1)( c): 14.280 s 65: 14.280 s 125: 17.100 s 237(1): 14.280 s 237(2): 14.280 s 238: 14.280 s 239: 14.280 S 240: 14.280, 17.100 s 242: 14.280 s 245: 17.100 s 247: 17.100 National Environment Protection Council (New South Wales) Act 1995: 15.900 National Park Estate (Land Transfers) Act 1998: 14.180 National Park Estate (Lower Hunter Region Reservations) Act 2006: 15.900 National Park Estate (Reservations) Act 2002: 15.900

National Park Estate (Reservations) Act 2003: 15.900

National Parks and Wildlife (Adjustment of Areas) Act 2005: 15.900

National Park Estate (Reservations) Act 2005: 15.900

Native Title (New South Wales) Act 1994: 15.950

National Park Estate (Southern Region Reservations) Act 2000: 15.900

Native Vegetation Act 2003: 15.900, 17.70 s 38(1): 17.60

National Parks and Wildlife Act 1974: 7.410, 12.140, 12.170, 12.240, 13.100, 15.900, 16.90, 17.60, 17.70 s 2A: 12.170, 16.90 s 2A(1): 12.170 s 2A(1)(a): 7.410, 13.100 s 2A(2): 7.410, 12.140, 12.170 s 2A(3): 12.170 s 5(1): 16.90 s 30A(1): 16.90 ss 30E to 30K: 16.90 s 41: 16.90 s 45(1)(a): 16.90 s 72(1)(a): 16.90 s 72AA: 13.100 s 72AA(1)(b): 13.100 s 81(1): 13.100 s 81(2): 13.100 s 81(4): 13.100 s 90: 12.170 s 91AA(1): 17.60 s 91A(a): 17.60 s 91A(c): 17.60 s 918(1): 17.60 s 92A(5): 12.240 s 92A(6): 12.240 s 97: 16.40 s 97(2): 16.90 s 98: 10.170 s 98(2)(a): 16.90 s 99: 10.170 s 118A(1): 16.90 s 118A(2): 16.90 s 1188(1): 16.90 s 118C(1): 16.90 s 119A(2): 12.140 s 137: 16.90 s 151: 16.90 s 164: 17.50 s 175A: 17.70 s 1758: 17.70 s 176A(2): 17.60 s 176A(3): 17.60 s 193: 17.60 s 197: 17.80 Pt 5: 13.100 Pt 9: 16.90 Sch 11: 16.90

Native Vegetation Conservation Act 1997: 10.210 Natural Resources Commission Act 2003: 15.950 Nature Conservation Trust Act 2001: 15.900 Noxious Weeds Act 1993= 15.950 Occupational Health and Safety Act 2000: 15.950 Ozone Protection Act 1989: 15.900 Pesticides Act 1999: 15.900 Petroleum (Onshore) Act 1991: 14.280, 15.950 s 6: 14.200 s 74(1): 14.280 s 74(2): 14.280 s 75: 14.280 s 76: 14.280 s 77: 14.280 s 78: 14.280 Pt 4, Div 4: 14.280 Petroleum (Submerged Lands) Act 1982: 15.950 Plant Diseases Act 1924: 15.950 Plantations and Reafforestation Act 1999: 15.950 Poisons and Therapeutic Goods Act 1966: 15.950 Prevention of Cruelty to Animals Act 1979: 15.950 Protection of the Environment Administration Act 1991: 1.210, 7.320, 7.410, 7.440, 14.300, 15.190, 15.290, 15.900 s 3(1): 1.210, 7.440 s 4(6): 7.440, 11.30 s 6: 7.440 s 6(1): 15.190 s 6(2): 7.440, 12.140, 12.170, 16.110 s 6(2)(a): 12.230 s 7(1): 7.440, 11.30 s 7(2): 7.440, 11.30 xlvii

Table of Statutes

Australian Environmental Law

Protection of the Environment Administration Act 1991 - cont

s 8(h): 15.590 s 97(1)(e): 7-410 s 126A: 7-410 s 140(1): 7.410 Pt 8A: 14.300 Pt 8A, Div 6: 14.300 Protection of the Environment Operations Act 1997: 1.210, 5.160, 7.320, 7.440, 14.290, 15.10, 15.190, 15.290, 15.450, 15.600, 15.900, 17.70, 17.260, 17.320, 17.340 s 3: 7.320 s 3(a): 5.160, 15.190 s 3(d): 5.160, 15.190 1 15.600 s 4: 15.40, 15.370 s 5(1): 15.290, 17.320 s 7: 10.170 S 7(1): 10.170 s 7(2): 10.170, 15.190 s 7(3): 15.190 s 9: 15.450 s 10: 7.320, 15.450 s 1o(a): 15.450 s 1o(b): 15.450 s 11(1): 15.450 s 28(a): 15.450 s 29: 15.450 ss 29(a) to ( c): 15.450 s 29( d): 15.450 s 29(e): 15.450 s 29(f): 15.450 s 30(1): 15.450 s 31: 15-450 s 31(1): 15-450 s 31(2): 15.450 s 32: 15.450 s 36: 15.450 s 43: 15.40 s 43(d): 10.40, 15.290 s 44(2): 10.230 s 45: 7.320, 10-40 s 45(a): 15.450 ss 45(a) to ( c): 15.290 s 45( c): 15.40 s 45(f): 15.290 s 45(h): 15-290 s 45(i): 15.290 s 45(1): 15.290 s 47: 15.290 s 48: 10.230, 15.290 s 48(2): 10.230 s 49: 15.290 S 53: 10.220 s 58: 15.600 s 64(1): 10.230 xlviii

s 91: 17.250 s 91(1): 17.250 s 92(1): 17.250 s 95: 17.250 s 96: 17.250 s 96( 1): 17.250 s 96(2): 17.250 s 101: 17.250 s 101(1): 17.250 s 101(2): 17.250 s 104: 17.250 s 104(1): 17.250 s 104(3): 17.250 s 104(4): 17.250 s 106(1): 17.250 s 106(3): 17.250 s 106(4): 17.250 s 107(2): 17.250 s 115(1): 10.230, 15.40 s 115(2): 10.230, 15.40, 15.370 ss 115 to 117: 15.370 s 116(1): 15.40 s 116(4): 15.40 s 118: 15.40, 15.370 s 120: 10.40, 10.220, 15.40, 15.370 s 120(1): 10.40, 10.220, 15.370 ss 120 to 123: 10-40 S 121: 10.40 s 121(2): 10.40 s 122: 10-40, 10.220, 15.40, 15.290, 15.370 s 123: 10-40 ss 124 to 126: 15.370 S 144(1): 10.140 s 156: 10.80 s 157: 10.80 s 169: 17.300 s 172(a): 15.450 s 173: 17.240 s 174: 17.240 s 178: 17.240 s 179: 17.240 ss 180 to 183: 17.240 s 181: 17.240 s 181(1): 17.240 s 182(1)(a): 17.240 s 182(1)(b): 17.240 s 184: 15-450 s 193: 17.230 s 196: 17.230 s 224: 17.290 s 241: 17.330 s 241(1): 17.330 s 244: 17.310 s 252: 10.230 s 252(1): 17.260 s 253(1): 17.260 s 255: 17.320

Protection of the Environment operations Act 1997 - cont

s 255(1)(a): 17.320 s 257: 17.320 s 257(1): 17.320 s 257(1)(a) to (c): 17.320 s 257(2): 17.320 s 258: 17.320 s 258(1): 17.320 s 258(2): 17.320 s 259: 17.320 s 260: 17.320 s 261: 17.320 s 261(1): 17.320 s 261(2): 17.320 s 262: 17.320 s 262(2): 17.320 s 293(1): 15.600 s 293(2): 15.600 s 293(3): 15.600 s 294A: 15.600 s 295: 15.600 ss 295A to 295L: 15.600 s 2958: 10.280 s 295C: 15.600 s 295((2): 15.600 s 295D(1): 15.600 s 2950(2): 15.600 s 315: 14.300 Ch 4: 17.250 Pt 9.3A: 10.280 Sch 1: 15.290, 17.320 Sch 11 Pt 1: 17.320 Protection of the Environment Operations (Clean Air) Regulation 2002 reg 11: 10.80 reg 11(b ): 10.80 Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002: 10.280 Protection of the Environment Operations (Waste) Regulation 2005: 10.80 cl 48: 10.80 Public Health Act 2010: 15.950 Radiation Control Act 1990: 15.10, 15.900 Real Property Act 1900: 17.250 Recreation Vehicles Act 1983: 15.900 Registered Clubs Act 1976: 10.190 Roads Act 1993: 15.900

Royal Botanic Gardens and Domain Trust Act 1980: 15.900 Rural Fires Act 1997: 15.950 Rural Lands Protection Act 1998: 15.950 Soil Conservation Act 1938: 15.900 State Emergency and Rescue Management Act 1989: 15.950 State Records Act 1989: 15.950 Stock (Chemical Residues) Act 1975: 15.950 Stock Diseases Act 1923: 15.950 Stock Foods Act 1940: 15.950 Stock Medicines Act 1989: 15.950 Subordinate Legislation Act 1989 s 10(2): 15.600 Pt 3: 15.600 Sydney Olympic Park Authority Act 2001: 15.950 Sydney Water Act 1994: 15.950 Sydney Water Catchment Management Act 1998: 15.950 Threatened Species Conservation Act 1995: 7-410, 12.140, 13.100, 13.190, 15.900, 16.110, 17.60, 17.70 s 3: 16.110 s 3(a): 7.410 1 16.110 s 3(b ): 16.110 s 3(c): 16.110 s 3(d): 16.110 s 4(1): 16.110 s 6: 16.110 s 7: 16.110 s 8: 16.110 s 10(3): 16.110 ss 10 to 12: 16.110 ss 10 to 14: 16.110 s 37(1): 16.110 s 38: 16.110 s 39: 16.110 s 40: 16.110 s 40(1): 16.110 s 40(2): 16.110 s 44(1)(b): 16.110 s 50: 16.110 s 51: 16.110 s 56: 16.110 s 56(1): 13.100 s 56(2): 13.100 s 59(a): 13.100 xlix

Table of Statutes

Australian Environmental Law

Threatened Species Conservation Act 1995-cont

s 69(1): 13.100 s 69(2): 13.100 ss 70 to 72: 13.100 s 73(4): 13.100 s 74: 16.110 s 74(1): 13.100 s 77(b): 13.100 s 86(1): 13.100 s 86(2): 13.100 ss 87 to 89: 13.100 s 90(4): 13.100 S 91: 16.110 s 109: 13.190 s 114(1): 17.60 s 140: 16.110 S 140(1): 16.110 s 140(2)(a): 16.110 s 140(2)(b): 16.110 s 141F: 17.60 s 147(2): 17.60 s 147(3): 17.60 Sch 1: 16.110 Sch 2: 16.110 Sch 3: 16.110 Uniform Civil Procedure Rules 2005 r 42.2: 17.270 Unlawful Gambling Act 1998: 10.190 Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986: 15.950 Waste Avoidance and Resource Recovery Act 2001: 15.900 Waste Recycling and Processing Corporation Act 2001: 15.950 Water Act 1912: 15.950 Water Management Act 2000: 4.200 1 8.90, 15.950 Western Lands Act 1901: 15.950 s 18DA(8A): 12.130 Wilderness Act 1987: 15.900, 16.90 s 9: 16.90 Zoological Parks Board Act 1973: 15.950

NORTHERN TERRITORY Environmental Assessment Act 1982: 13.180 Heritage Act 2011: 16.260 s 3(1): 16.260 s 3(1)(a): 16.270

s 10: 16.270 s 11: 16.270 s 12(1): 16.270 s 16: 16.270 s 17: 16.270 s 18: 16.270 s 139(5): 16.270 Pt 2.2: 16.270 Pt 2.3: 16.270 Pt 3.1: 16.270 Pt 3.2: 16.270 Pt 3.6: 16.270 Pt 5.5: 16.270 Pt 5.6: 16.270 Pt 5.7: 16.270 Pt 5.8: 16.270 Mineral Titles Act 2010 Pt 6: 16.130 Pastoral Land Act 1992: 7.40 s 4(a): 7-40 s 6: 7.40 Petroleum Act 1984: 16.130 s 3(1): 7.80 s 3(2): 7.80 s 3(2)(f): 7.80 Petroleum (Submerged Lands) Act 1991: 16.130 Planning Act 2003 s 7(1): 13.240 s 8: 13.240 s 9: 13.240 s 51(a): 13.240 s 51(d): 13.240 s 51(g): 13.240 s 51(p): 13-240 s 75(1): 13-240 Territory Parks and Wildlife Conservation Act s 19(1): 13.110 s 19(2): 13.110 s 21: 13.110 s 34(1): 13.110 s 34(4): 13.110 Territory Parks and Wildlife Conservation Act 1976: 16.130, 17.70 s 9(1): 16.130 s 9(4): 16.130 s 12(1)(a): 16.130 s 17: 16.130 s 18: 13.110, 16.130 s 18(1): 16.130 s 18(3)(b): 13.110 s 18(5): 13.110, 16.130

Territory Parks and Wildlife Conservation Act 1976 - cont

s 18(5)(a): 16.130 s 18(5)(b): 16.130 s 18(5)( c): 16.130 s 18(5)(d): 16.130 s 25F: 16.130 s 25G: 16.130 s 31: 16.130 s 31(1)(a): 16.130 s 31(1)(b): 16.130 531(1)(e): 16.130 s 31(2)(a): 16.130 s 31(2)(b): 16.130 s 31(3)(a): 16.130 s 32: 13.110, 16.130 s 32(1): 13.110, 16.130 s 32(1)(a): 16.130 s 32(2)(b ): 16.130 s 37: 16.130 s 37(1): 16.130 s 37(4)(a): 16.130 s 37(5)(d): 16.130 s 42(1): 16.130 s 43(1): 16.130 s 45: 16.130 s 55: 16.130 ss 66 to 67C: 16.130 s 96: 17.50 s 115: 17.80 s 115C(1)(b): 17.80 s 115((2): 17.80 s 118(1): 17.70 Waste Management and Pollution Control Act 1998: 7.290 1 15.180 1 15.310, 15.390, 15.430, 15.550, 17.250 s 4(1): 15.50, 15.180, 15.310 s 5(a): 7.290, 15.50, 15.180 ss 5(a)(i) to (iii): 15.180 s 5(b): 7.290, 15.180 s 6(1): 15.180 ss 6(2) to (4): 15.180 s 12: 17.250 s 15: 15-430 s 16: 15.430 s 17(1): 15.430 s 17(2): 15.430 s 30: 15.50, 15.550 s 30(1): 15.310 s 30(3): 15.310 s 32: 7.290 s 32(1): 15.310 s 32( 1)(b ): 15.430 s 32(1)(h): 15.310 ss 33(a) to (e): 15.550 s 35(3)(b )(i): 15.50 s 38(2)(d): 15-430

s 48: 17.240 s 49: 17.240 s 54: 17.240 s 55: 15.550 s 56( c): 15.550 s 57: 15.550 s 57(1)(b): 15.550 s 58: 15.550 ss 60(1)(a) to (c): 15.550 s 60(2): 15.550 s 62: 15.550 s 63: 15.550 s 66(1): 15.550 s 66(2)(b ): 15.550 s 66(2)( c): 15.590 s 66(3): 15.550 s 72: 17.230 s 74: 17.230 s 77: 17.250 s 79(1): 17-250 s 79(2): 17.250 s 81: 17.250 s 83: 15.390, 17.250 ss 83(1) to (4): 15.390 s 83(2): 15.50 s 83(6 ): 15.390 s 83(7): 15.390 s 84: 15.390 s 84(1): 15.390 s 84(2): 15.390 s 91: 17.300 s 92: 17.300 s 96(1): 17.320 s 97: 17.310 s 101: 17.250 s 101(1): 17.250 s 101(3): 17.250 s 108(1)(p): 17.250 s 110: 17.250 Sch 2: 15.310

QUEENSIAND Cape York Peninsula Heritage Act 2007: 16.80 Coastal Protection and Management Act 1995: 16.230 s 3(a): 16.230 s 4(b): 16.230 s 4( c): 16.230 s 11: 16.230 s 12: 16.230 s 15(a): 16.230 s 18A(2): 16.230 s 18A(3): 16.230 s 20: 16.230 s 21(1): 16.230 Ii

Table of Statutes

Australian Environmental Law

Coastal Protection and Management Act

1995-cont s 21(2)(b ): 16.230 s 21(3)(a): 16.230 s 21( 4 )(b ): 16.230 s 33(1): 16.230 s 34(1): 16.230 s 35: 16.230 s 59: 16.230 s 60: 16.230 s 104(1)(a): 16.230 Constitution Act 1867 s 40: 4.150 Constitution of Queensland 2001 s 69: 4.150 Criminal Code s 22: 9.130 Economic Development Act 2012: 13.250 s 3(2): 13,250 s 8: 13.250 s 37(1): 13.250 s 37(2)(b )(ii): 13,250 s 56(1): 13.250 s 73(1): 13,250 s 87(1): 13.250 Electricity Act 1994: 14.240 s 27( c): 14.240 s 31(b ): 14.240 s 42( c): 14.240 Environmental Protection Act 1994: 1.220, 2.10, 7.100, 7.350, 12.300, 13.200, 14.240, 15.100, 15.140, 15.320, 15.410, 15.500, 15.570, 16.160, 17.240, 17.330, 18.60, 18.130, 18.180 s 3: 7.350, 14.240, 15.200 s 4(1): 7.350, 15.200 ss 4(2) to (7): 7-350 s 5: 7.350, 11.30, 15.250 s 8: 1.220, 15.90 s 9: 15.90 s 9(a): 18.60 s 9(b ): 15.90 s 10: 18.60 s 11(a): 18.60 S 14(1): 15.100, 18.60 s 14(2): 15.100 s 15: 15.110 s 16(1)(a): 15.110 s 17(1)(a): 15.110 s 18: 15.320 s 18(c): 18.60 s 19: 15.320 s 19(a): 18.60 s 19(b ): 18.60

Iii

s 22: 14.240 s 24(3): 10.90 s 27(1): 15.500 s 28(1): 15.500 s 28(2)(a): 15.500 s 28(2)(b ): 15.500 s 28(2)( c): 15.500 ss 28(2)(c)(i) to (iii): 15.500 s 28(2)(d): 15.500 s 28(3): 15.500 s 33: 15.500 s 34: 15.500 s 37(1)(a) and (b): 13,200 s 37(1)(c) to (e): 13,200 S 40: 13.200 s 41(1): 13.200 S 43(1): 13,200 ss 44 to 46: 13.200 s 47(1): 13.200 S 49(1): 13,200 S 51(2): 13.200 s 54: 13.200 s 57: 13.200 S 60(1): 13.200 s 107: 15.320 s 110: 14.240 s 112: 14.240 s 115: 15.320 s 121: 14.240 s 122: 14.240 s 124: 14.240 s 125(1)(1): 14.240 s 175(2)(a): 15.500 s 175(2)(b)(iii): 15.500 s 176(2)(b )(iv): 15.500 s 223(c): 18.130 s 233(1): 14.240 s 319: 10.90, 15.110, 15-410, 18.60 s 319(1): 10.90 s 321: 17.240 s 322: 17.240 s 323: 17.240 s 325: 17.240 s 326: 17.240 s 330: 15.570 s 33o(a): 15.570 s 33o(b ): 15.570 s 331: 15.570 s 331(b ): 15.570 s 332(1): 15.570 s 332(2): 15.570 s 333: 15.570 s 337(1): 15.570 s 338: 15.570 s 338(1)(a): 15.570 s 338(1)(b)(i): 15.500, 15.570 s 346: 15.570 s 351: 15.570

Environmental Protection Act

1994-cont s 358: 17.250 s 358(d)(i): 10.90, 15-410 s 358(d)(iii): 15.410 s 360(2): 10.90 s 426: 14.240 s 426(1): 15.320 ss 437 to 440: 18.60 s 442(2): 18.60 s 451: 17.230 s 452: 17.230 s 453: 17.230 s 489: 17.250 s 490(4): 17.320 s 490(5): 17.320 s 490(6): 17.320 s 490(7): 17.320 s 493: 17.300 s 493(1): 17.300 s 493(2): 17.300, 17.330 s 493A: 15.110, 18.60 s 493A(1)(a): 15.110 s 493A(2): 15.110 s 493A(3): 15.110 s 502: 17.310 s 505(1): 17.260 Ch 3: 13.200 Ch 5: 14.240 Sch 4, item (b ): 15.500 Environmental Protection Regulation 2008 reg 17: 18.60 Sch 2, Pt 3, Item 14: 18.60 Environmental Protection (Water) Policy 2009 s 6(2): 15.90 Fauna Conservation Act 1974: 9.130 s 7: 9.130, 9.140 s 7(1): 9.130, 9.140 Fisheries Act 1994: 7.170 Forestry Act 1959: 14.140, 16.160 s 23: 14.140 s 25( 1): 14. 140 s 33: 14.140 s 33(1): 14.140 s 33(2): 14.140 s 33(2)(b ): 14.140 s 34: 14.140 s 34(1)(c): 14.140 s 34(2): 14.140 s 34(2A): 14.140 s 39A(1): 14.140 s 39A(2): 14.140 ss 39A to 39C: 14.140

s 39B: 14.140 s 61J(1): 10.290 s 61J(3): 10.290 s 61J(5): 10.290 s 61J(7): 10.290 Integrated Planning Act 1997: 13.250, 18.260 s 8: 7.260 Judicial Review Act 1991: 17.210, 17.380 Land Act 1994: 7.30, 14.70 s 4: 7.30, 14.70 s 14(1): 14.70 s 14(2): 14.70 s 15: 14.70 s 16(1): 7-30, 14.70 s 16(2): 7.30, 14.70 s 31(1): 14.70 s 176X: 14.70 s 177: 14.70 s 199: 14.70 s 199(1): 14.70 s 199( 2): 14. 70 s 203: 14.70 s 203(a): 14.70 s 203(b ): 14.70 s 213: 14.70 s 214(1): 14.70 s 214(2)(a)(i)(A): 14.70 s 214(2)(a)(i)(B): 14.70 s 214(2)(a)(ii): 14.70 s 214(2)(a)(iii): 14.70 s 214(2)(b): 14.70 s 214A: 14.70 Local Government Act 1936: 1.260 s 32A: 1.260 Marine Parks Act 2004: 7-420 s 32(2): 7.420 s 140(2): 17.390 Mineral Resources Act 1989: 7.100, 12.300, 14.240, 16.160, 18.130, 18.180 s 2: 7.100 s 2( d): 14.240 s 2(g): 14.240 s 4A(1): 14.240 s 269(4)(j): 7.100, 14.240, 18.130, 18.180 s 269(4)(k): 7.100 S 271(1): 7.100 s 271(l)(b ): 14.240 Mining Act 1968: 12.90 Mining Regulations 1968: 12.90 reg 39(2)(a): 12.90 National Parks and Wildlife Act 1975 liii

Table of Statutes

Australian Environmental Law

National Parks and Wildlife Act 1975-cont S 25: 11.220, 11.230

Nature Conservation Act 1992: 1.220, 5.150, 7.400, 7,420, 9.130, 16.160, 17.70 s 4: 5.150, 7,400, 16.160 S 5: 5.150, 16.160 s 5(c): 5.150 s 5(d): 5.150 s5(e):5.150 s 6: 16.160 s 7: 1.220, 16.160 s 8: 16.160 s 8(2): 16.160 s 9: 5.150, 7.400, 16.160 s 10: 16.160 s 11: 5.150, 7.400, 16.160 s 11(c): 16.160 s 11(d): 16.160 S 12: 16.160 s 13(1): 16.160 s 14: 16.160 s 15: 16.160 ss 16 to 24: 16.160 s 17: 16.160 s 17(1): 16.250 s 17(1)(a): 16.160 s 17(1)(b): 16.160 s 17(1)(c): 16.160 s 17(2): 16.160 s 18: 16.160 s 19: 16.160 s 19A: 16.160 S 21(1): 16.160 s 22: 16.160 s 27(1)(b): 16.160 s 43: 16.160 s 45: 16.160 s 46(1): 16.160 s 49: 16.160 s 49(1): 16.160 s 49(1)(b): 16.160 s 49(3): 16.160 s 49(4): 16.160 s 52(2)(b): 16.160 s 61: 16.160 s 62(1): 16.160 s 67: 16.160 s 67(2): 16.160 s 73: 16.160 s 74: 16.160 s 83: 16,40 ss 83 to 85: 16.160 s 84: 16,40 s 88(2): 16.160 s 88(5): 16.160 s 89(1): 16.160 liv

s 89(1)(a): 16.160 s 89(1)(b): 16.160 s 90(1): 16.160 s 102: 17.60 s 109: 17.60 S 111: 13.110 s 111(1): 13.110 S 112: 13.110 S 112(1): 13.110 s 112(2)(d): 13.110 S 112(5): 13.110 s 112(5)(a): 13.110 s 112(5)(b ): 13.110 s 117(1): 13.110 s 117(1)(a): 16.160 s 118(1): 13.110, 16.160 s 119(1): 13.110 s 119(2): 13.110 S 120(1): 13.110 s 120(2): 13.110 s 122: 13.110 s 123(2): 13.110 s 160(4): 17.80 s 160(5): 17.80 s 162: 17.70 s 168: 17.70 s 175(2)(j): 13.110 Pt 9: 17.50 North Stradbroke Island Protection and Sustainability Act 2011: 16.80 Petroleum and Gas (Production and Safety) Act 2004: 7.100 s 3(1)(a)(i): 7.100 s 121(1)(f): 7.100 Primary Industries and Natural Resources Legislation Amendment Act 2000 Sch 1: 14.140 Queensland Heritage Act 1992 s 4: 16.260 State Development and Public Works Organisation Act 1971: 13.200 s 26: 12.300 s 26(1): 13.200 s 27(b ): 13.200 s 27( e): 13.200 s 27(h): 13.200 s 39(2)(b ): 13.200 s 46(1)(b): 13-200 s 49( 1): 13.200 s 52( 1): 13.200 Pt 4: 13.200 State Forests and National Parks Act 1906 s 2(2): 16.10 s 4: 16.10

Strategic Cropping Land Act 2011: 13.250 s 3: 13.250 s 11: 13.250 s 76(2): 13.250 s 101: 13.250 Sustainable Planning Act 2009: 7.260, 13.200, 13.250, 14.240, 15.320, 16.230, 17.210, 18.260 s 3: 13.250 s 3(b): 13-250 s 4(1)(a): 7.260 s 5: 7.260 s 5(1)(a)(ii): 18.190 s 8: 16.240 s 11: 7.260, 13.250 s 11( c)(iv): 18.190 s 26(3): 13-250 s 4o(b): 13-250 s 43: 13.250 s 88(1)(b): 13-250 s 88(1)(c): 13-250 s 88(1)(d): 13-250 s 89(1): 13-250 s 89(2): 13-250 s 232(2): 14.240 s 326(1)(b ): 13.250 s 456: 17.210 s 456(1): 17.210 ss 456(1)(a), (b) and (e): 17.210 s 498: 17.210 S 500: 17.210 s 578(1): 17.210 s 582: 17.210 s 590(1): 17.140 s 597(1): 17.210 s 598(1): 17.210 s 601: 17.210 S 604(1): 17.210 s 605(1): 17.210 s 607: 17.210 s 611: 17.110 s 688: 13.200 s 757: 17.210 ss 757(1)(a) to (d): 17.210 s 757(1)(d): 17.210 Ch 9, Pt 2: 13.200 Sch 3: 13.250 Sustainable Planning Regulation 2009 Sch 4: 14.240 Water Act 2000: 12.300 Wet Tropics Management Plan 1998: 13.150, 16.60 s 10: 13.150 s 13: 13.150 s 16: 13.150

s 19: 13.150 s 25: 13.150 s 26: 13.150 s 27: 13.150 s 28: 13.150 ss 32 to 35: 13.150 s 56(1): 13.150 s 56(3)(a): 13.150 s 56(3)(b ): 13.150 s 56(3)(c): 13.150 s 57: 13.150 s 58: 13.150 s 59(1): 13.150 s 60: 13.150 Pt 3: 13.150 Wet Tropics World Heritage Protection and Management Act 1993: 13.150, 16.60 s 7: 16.60 s 41(1): 13.150, 16.60 s 41(3): 13.150 s 41(4): 13.150 s 49: 13.150 s 50: 13.150 Pt 4: 13.150

SOUTH AUSTRALIA Aboriginal Heritage Act 1988: 11.180 s 6(1): 11.180 s 6(2): 11.180 S 23: 11.180 Arkaroola Protection Act 2012: 16.80 Broken Hill Proprietary Company's Steel Works Indenture (Environmental Authorisation) Amendment Act 2005: 17.390 Character Preservation (Barossa Valley) Act 2012: 16.80 Character Preservation (McLaren Vale) Act 2012: 16.80 Crown Land Management Act 2009: 14.30 s 4: 14.30 s 4( c): 14.30 s 5: 14.30 s 5(1): 14.30 s 5(2): 14.30 s 5(2)(a): 14.30 s 5(2)(b ): 14.30 s 18(1): 14.30 s 24(1): 14.30 s 28(1): 14.30 s 32(1): 14.30 s 46: 14.30 Iv

Table of Statutes

Australian Environmental Law

Crown Lands Act 1929: 14.30 s 23(b ): 14.30 s 249((1): 14.30 Development Act 1993: 1.300, 7.240, 11.210, 13.180, 13.240, 15.490, 17.140, 18.280 s 3: 13.240, 16.240 s 3(a) to ( c): 13.240 s 3( c): 7.240, 13.240 s 19: 17.120 s 33(1)(a): 13.240 s 84(2): 17.140 s 85(1): 17.200 s 85(6): 17.200 s 88A(2): 17.200 s 888(1): 17.200 s 88(: 17.200 s 88((1): 17.200 s 106: 17.110 Pt 8: 14.250 Electricity Act 1996: 14.250 s 6: 14.250 Environment Protection Act 1993: 1.220, 1.300, 7.310, 14.250, 15.210, 15.250, 15-490, 17.260, 17.390, 18.350 s 3(1): 15.70 s 5(1): 15.70 s 7(4): 14.250 s 10: 7.310, 15.210, 15.490 s 10(1)(a): 15.210 s 10(1)(a)(i): 15.210 s 10(1)(a)(i)(A): 15.210 s 10(1)(a)(i)(8): 15.210 s 10(1)(a)(i)(C): 15.210 s 10(1)(a)(ii): 15.210 s 10(1)(b): 15.210 s 10(1)(b)(i): 15.210 s 10(2): 11.30, 15.250, 15.300 s 24: 15.590 ss 24(4)(b) to (e): 15.590 s 25: 10.90, 15.400 s 27(1): 15.490 s 27(2)(a)(i): 15.490 s 27(2)(a)(ii): 15.490 s 27(2)(b ): 15.490 s 34: 15-490 s 35(1): 15.300 s 36: 15.300 s 44(1): 15.520 s 44(2)(a): 15.520 s 44(2)(b ): 15.520 s 47(1)(c): 15.300 s 47(1)(d): 15.300 ss 47(1)(e) to (1)(h): 15.300 s 58: 17.240 s 59(1): 15.520 lvi

s 59(2)(b ): 15.520 ss 59(2)(b )(i) to (iii): 15.520 s 59(2)(b )(ii): 15.590 s 59(3): 15.520 s 59(4): 15.590 s 59(4)(a): 15.590 s 59(4)(b): 15.590 s 59(5): 15.520 s 59(6): 15.520 s 60(3): 15.520 s 79: 15.70 s 79( 1): 15.400 s 79(2): 15.400 s 80: 15.70 s 80(1): 15.400 s 80(2): 15.400 s 82: 15.400 s 84( 1): 15.400 s 87: 17.230 s 87(1)(e): 17.230 s 91(1): 17.230 s 91(2): 17.230 s 93: 17.250 s 96: 17.230 s 96(1): 17.230 s 96(2): 17.230 s 96(5): 17.230 s 97(4): 17.250 s 98(1): 17.230 s 98(2): 17.230 s 99: 17.250 s 104: 17.260, 17.390 s 104(1): 17.260 s 104(1)(a) to (d): 17.260 s 104(1)(e): 17.260 s 104(1)(f): 17.260 s 104(4): 17.260 s 104(7): 17.260 s 104(7)(b ): 17.390 s 104(7)( c): 17.390 s 104(8): 17.260 s 104(8)( c): 17.260 s 104(11): 17.390 s 104(18): 17.260 s 104(22): 17.260 s 113(1): 15.590 s 113(2): 15.590 s 124(1): 15.400 s 124(3): 15.400 s 124(3)(b ): 15.400 s 129: 17.300 s 133: 17.310 s 139(1): 17.320 s 139(3): 17.320 s 139(6): 17.320 Sch 1: 15.300 Fisheries Act 1971

Fisheries Act 1971 s 29(1): 8.110

cont

Fisheries Management Act 2007 s 72(2)(c): 8.110 Forest Property Act 2000: 14.120, 18.370 s 3: 18.370 s 3A(1): 14.120, 18.370 s 3A(2): 18.370 s 5: 18.370 s 5(1)(a): 14.120 s 5(1)(b): 14.120 s 5(2): 14.120 s 5(3): 14.120, 18.370 s 6(1)(a): 18.370 s 6(1)(c): 18.370 s 6( 1)( d): 18.370 s 6(2): 18.370 s 6(3)(b ): 18.370 s 7(1): 18.370 s 7(2): 18.370 s 8(1): 18.370 s 8(2): 18.370 s 12: 14.120, 18.370 s 16(1): 14.120 s 16(3): 14.120 s 16(4): 14.120 Forestry Act 1950: 14.130 s 3(1)(a): 14.130 s 3(1)(b): 14.130 s 9: 14.130 s 9A: 14.130 s 10: 14.130 s 11: 14.130 Local Government Act 1999: 18.350 s 8: 18.350 s 8( d): 18.350 s 8(f): 18.350 Mining Act 1971: 14.250 s 16: 14.200 s 34( 6 ): 14.250 s 41: 17.100 s 41(1): 17.100 s 41(3): 17.100 s 56A: 14.250 s 568(2)( c): 14.250 s 568(2)( e): 14.250 s 568(2)(f): 14.250 s 568(2)(g): 14.250 s 63T(1)(a)(vi): 14.250 s 69: 17.100 S 70(1): 17.100 S 70(2): 17.100 s 70(3)(a): 17.100 s 70(3)(b ): 17.100 s 73G(1): 14.250

s 73G(2)(b ): 14.250 s 73G(3): 14.250 s 73H(1): 14.250, 17.100 s 73H(3): 17.100 s 73H(4): 14.250 s 731: 17.100 s 731(1): 17.100 s 73J: 17.100 s 73J(1): 17.100 s73O: 17.100 s 74A: 17.100 s 74A(1): 17.100 s 74A(1)(a): 17.100 s 74A(1)(b): 17.100 Pt 118: 17.100 National Parks and Wildlife Act 1972: 13.80, 16.140 s 11: 16.140 s 22: 17.50 s 28(1): 16.140 s 28(1)(a): 16.140, 16.250 s 28(1A)(a): 16.140 s 30(1): 16.140 s 30(1)(a): 16.140, 16.250 s 30(1A)(a): 16.140 s 32(1): 16.140 s 32(1)(a): 16.140 s 34(1): 16.140 s 34(1)(a): 16.140 s 34A(1): 16.140 s 34A(1)(a): 16.140 ss 35 to 40A: 16.140 s 37: 16.140 s 37(1)(a): 16.140 s 37(1)(c): 16.140 s 38(1): 13.80 ss 38(3) to (11): 13.80 s 40(1): 13.80, 16.140 s 43(1): 16.140 s 43(2): 16.140 s 43(5): 16.140 s 43A: 16.140 s 43A(7): 16.140 s 44: 16.140 s 45: 16.140 Pt 4: 16.140 Pt 5: 16.140 Schs 3 to 6: 16.140 Native Vegetation Act 1991: 16.200, 17.40 s 3(1): 16.200 s 4: 16.200 s 6(a): 16.200 s 6(c): 16.200 s 21: 16.200 s 23A( 1): 16.200 s 23A(2)(a): 16.200 lvii

Australian Environmental Law

Native Vegetation Act 1991 -

Table of Statutes

cont

s 23A(2)(b ): 16.200 s 23A(2)( c): 16.200 s 23A(2)( d): 16.200 s 24: 16.200 s 26(1): 17.40 s 27: 16.200 s 29: 16.200 S 29(1): 16.200 s 29(3): 16.200 s 29(4): 16.200 S 29(11): 16.200 s 31A(1)(a): 17.40 s 31B: 17.40 s 33B: 17.40 s 34: 17.40 s 34(2): 17.40 s 39: 17.40 Pt 4: 16.200 Pt 5: 16.200 Sch 1: 16.200 Sch 1, para 1(g): 16.200 Sch 1, para 1(h): 16.200 Sch 1, para 1(i): 16.200 Sch 1, para 1(i): 16.200 Natural Resources Management Act 2004: 14.250, 16.220 s 7: 14.250, 16.220 s 8: 16.220 s 9: 16.220 s 9(1): 16.220, 16.500 s 9(2): 16.220 s 9(4): 16.220, 16.500 s 9(5): 16.220, 16.500 s 9(6): 16.500 s 69(1): 17.40 S 121: 16.220 S 122(1): 16.220 s 123: 16.220 s 193(1): 17.40 s 193(2): 17.40 ss 193(9) to (11): 17.40 s 194: 17.40 Ch 6: 16.220, 16.500 Ch 9, Pt 1: 16.500 Ch 9, Pt 2: 16.500 Sch 4: 17-40 Pastoral Land Management and Conservation Act 1989: 16.210 s 4(a): 16.210 s 4(b )(ii): 16.210 s 4(b )(iii): 16.210 s 4( c): 16.210 s 7(a): 16.210 s 7(b ): 16.210 s 22(1)(b): 16.210 lviii

s 22(1)(b)(vi): 16.210 s 43(1): 16.210 Petroleum Act 2000 s 95(2): 14.250 Petroleum and Geothermal Energy Act 2000: 14.250 s 3(a): 14.250 s 3(b ): 14.250 s 3( d): 14.250 s 4( 1): 14.250 s 5: 14.200 s 10(a): 14.250 s 10( c): 14.250 s 1o(f): 14.250 s 10(g): 14.250 s 87(a)(ii): 14-250 s 95: 14.250 s 99(1)(a): 14.250 s 99(1)(b): 14-250 s 100(2): 14.250 s 105(1): 14.250 Real Property Act 1886: 18.370 Registration of Deeds Act 1935: 18.370 Soil Conservation and Land Care Act 1989 s 53: 17.40 South Australian Forestry Corporation Act 2000: 14.130 s 3: 14.130 s 7(a): 14.130 s 7(b): 14.130

TASMANIA Acts Interpretation Act 1931: 15.470 Crown Lands Act 1976: 14.60 s 3: 14.60 s 3A(1): 14.60 s 3A(2): 14.60 s 3A(3): 14.60 s 12C: 14.60 s 12D(2): 14.60 Sch 4: 14.60 Sch 5: 14.60 Environment Protection Act 1973: 1.210 5 2(1): 1.210 Environmental Management and Pollution Control Act 1994: 5.170, 13.180, 15.220, 15.340, 15.400, 15.470, 15.540 s 3(1): 15.70 s 4(1): 15.540 s 5: 5.170

Environmental Management and Pollution Control Act 1994 - cont

s 8: 7.340, 11.30, 15.250 s 14(1)(a): 7.340 s 14(1)(b): 7.340 s 23A: 10.90, 15.400 s 23A(1): 10.90 s 24(1): 15.340 s 25(1): 15.340 s 25(5): 15.340 s 27(1): 15.340 s 27(4): 15.340 s 27(6): 15.340 s 27(6)(a): 15.340 s 27(6)(b ): 15.340 s 28(1): 15.540 s 28(2): 15.540 s 28(3): 15.540 s 29( 1): 15.540 s 29(2): 15.540 s 29(3): 15.540 s 29(4): 15.590 s 29(5): 15.590 s 30: 17.240 s 31: 17.240 s 38(1)(b)(i): 15.540 s 39(1): 15.540 s 42(1): 15.540 s 42(2): 15.540 s 43: 17.230 s 44: 17.250 s 48(1): 17.260 s 50: 15.470 s 50(1): 15,400 s 50(2): 15.400 s 51: 15.470 s 51(1): 15.400 s 51(2): 15,400 s 51A: 15.470 s 53: 15.400, 15.470 s 53(2): 15.400 s 55(1)(c): 15.400 s 55(3): 15-400 s 55(3)(b ): 15.400 s 55A(1): 15.400 s 60: 17.300 s 63: 17.310 s 65: 17.250 s 67: 17.290 s 92: 17.230 s 92(1)(e): 17.230 s 92(1)(f): 17,230 s 96((1): 15.470 ss 96D(2)(a) to ( e): 15,470 ss 96D(2)(f) to (h): 15,470 s 96E: 15.470 s 97: 15.590 ss 97(3)(b) to ( e): 15.590

Pt 1: 7.340 Sch 1: 7.340, 15.250 Sch 1, para 1(a): 15.220 Sch 1, para 2: 15.220 Sch 1, para 3: 15.220 Sch 1, para 3(a): 15.220 Sch 1, para 3(b ): 15.220 Sch 1, para 3( c): 15.220 Sch 1, Pt 1: 11.30 Sch 1, Pt 1, cl 2: 7.340 Sch 1, Pt 2: 5.170, 7.340, 11.30, 15.220 Sch 1, Pt 2, para 3(a): 5.170 Sch 1, Pt 2, para 3(b ): 5.170 Sch 1, Pt 2, para 3( c): 5.170 Sch 1, Pt 2, para 3(h): 5.170 Sch 2: 15.340 Fisheries Act 1959: 9.110 Forest Practices Act 1985: 7.50, 14.190 s 4B: 14.190 s 48(2): 7.50, 11.30 s 11: 14.190 s 12(2): 14.190 s 17(4): 14.190 s 17(5): 14.190 s 17(6): 14.190 s 18(3): 14.190 s 20: 14.190 s 21(1): 14.190 s 21(1A): 14.190 s 30: 7.50 s 31: 14.190 s 31(1): 14.190 s 31(2)(a): 14.190 s 31(2)(b): 14.190 s 31(3): 14.190 Sch 7: 7.50, 11.30, 14.190 Sch 7, item (b): 14.190 Sch 7, item (d): 14.190 Sch 7, item (h): 14.190 Forestry Act 1920: 7.50 s 6: 7.50 s 7: 7.50 s 8(1)(c): 7.50 s 8(1)(d): 7.50 s 8(2): 7.50 Historic Cultural Heritage Act 1995 s 3: 16.260 Land Use Planning and Approvals Act 1993: 5.170, 7.250, 15.220, 15.340, 15-400, 18.200, 18.210 s 5: 7.250, 11.30 s 20(1)(a): 5.170 s 20( 1)(b ): 5.170 s 20( 1)( c): 5.170 s 63(2): 17.170 lix

Australian Environmental Law

Land Use Planning and Approvals Act

1993-cont s 63(3): 17.170 s 63A(1): 17.170 s 64(1): 17.170 s 64(6): 17.170 s 65: 17.170 Sch 1: 7.250, 11.30 Sch 1, Pt 1: 5.170, 13.240 Sch 1, Pt 1, para 1: 5.170 Sch 1, Pt 2: 13.240 Sch 1, Pt 2, para (a): 13.240 Sch 1, Pt 2, para (c): 5.170, 13.240, 15.220 Sch 1, Pt 2, para (d): 5.170, 13.240 Sch 1, Pt 2, para ( e): 13.240 Sch 1, Pt 2, para (f): 5.170, 13.240 Sch 1, Pt 2, para (g): 5.170, 13.240 Sch 1, Pt 2, para (h): 5.170 Sch 1, Pt 2, para (i): 5.170 Living Marine Resources Management Act 1995: 9.110 Mineral Resources Development Act 1995: 14.220 s 11(2)( c)(v): 14.220 s 29(b): 14.220 s 181: 14.220 Mining (Strategic Prospectivity Zones) Act 1993: 14.220 S 4: 14.220 S 6: 14.220 s 7(2): 14.220 s 7(5)(b): 14.220 s 7(6)(b): 14.220 National Parks and Reserves Management Act 2002: 13.80, 16.100 s 3: 13.80 s 5(1): 16.100 s 5(2): 16.100 s 5(3): 16.100 s 19: 13.80 s 20: 13.80 ss 20 to 26: 13.80 s 30(1)(a): 13.80 s 64: 17.50 s 65: 17.50 S 79(1): 17.70 s 79(2): 17.70 Sch 1: 13.80, 16.100 Sch 5(e): 16.100 Sch 7(a): 16.100 Sch 7(b): 16.100 Nature Conservation Act 2002 s 51: 17.50 s 52: 17.50

Ix

Table of Statutes

s 62(1): 17.70 Private Forests Act 1994 s 26(1): 14.120 S 26(2): 14.120 s 26(3): 14.120 Resource Management and Planning Appeal Tribunal Act 1993: 11.20 Scenery Preservation Act 1915 s 6(1): 16.10 S 7(1): 16.10 s 7(2): 16.10 State Policies and Projects Act 1993: 5.170 s 5(1)(a): 5.170 s 5(1)(b): 5.170 s 5A: 5.170 Sch 1: 5.170 Sch 1, cl 1(a): 5.170 Sch 1, cl 1(b ): 5.170 Sch 1, cl 1( d): 5.170 Tasmanian Forests Agreement Act 2013 Sch 9: 7.50 Tasmanian Regional Forest Agreement Act 1997: 15.790 cl 68: 15.790 Threatened Species Protection Act 1995: 13.80, 16.120 s 4: 13.80, 16.120 s 7(d): 13.80 s 7( e): 13.80 S 10: 16.120 S 10(1): 16.120 s 10(2): 16.120 s 10(3)(a): 16.120 s 10(3)(b): 16.120 S 13: 16.120 s 22: 16.120 s 23: 16.120 s 25: 13.80, 16.120 S 27: 13.80, 16.120 s 29: 13.80 s 32(1): 17.60 s 44: 16.120 s 49: 17.50 Pt 1: 16.400 Sch 1: 13.80, 16.120 Sch 1, para 3(a): 16.120 Sch 1, para 3(b ): 16.120 Sch 1, para 3( c): 16.120 Sch 1, para 3( e): 16.120 Sch 1, para 3(f): 16.120 Sch 1, Pt 1: 16.120 Sch 1, Pt 2: 16.120 Schs 3 to 5: 16.120

VICTORIA Archaeological and Aboriginal Relics Preservation Act 1972 s 21 : 10.160, 17.380 Catchment and Land Protection Act 1994: 10.100 s 5: 10.100 S 20: 10.100 s 20(1): 10.100 s 33: 10.100 s 33(1): 10.100 s 33(3)(a): 10.100 s 33(4)(a): 10.100 s 34: 10.100 s 35: 10.100 s 37(1)(a): 10.100 s 38(1)(a): 10.100 s 38(1)(b): 10.100 s 41(1): 10.100 S 79(1): 10.100 s 79(2): 10.100 Charter of Human Rights and Responsibilities Act 2006: 4.160 s 9: 4.160 s 13: 4.160 s 19: 4.160 s 19(1): 4.160 s 20: 4.160 Climate Change Act 2010: 18.40 s1: 18-40 ss 8 to 13: 18-40 s 14: 18.40 s 16: 18.40 s 21(a): 10.290 s 22: 10.290 s 27: 10.290 s 28: 10.290 Pt 4: 18.40 Pt 5: 18.40 Conservation, Forests and Lands Act 1987: 7.390, 14.160, 16.170 s 4: 7.390 s 4(a): 14.160, 16.170 s 4(b): 7.390, 14.160 s 31(1): 14.160, 16.170 s 32(2): 16.170 s 33: 14.160 s 35: 14.160 s 36: 14.160 s 39(a): 14.160 s 39(b ): 14.160 S 40: 14.160 s 68: 16.170 s 68(3): 14.160

s 69(1): 14.160, 16.170 s 70(1)(a): 14.160, 16.170 s 70(1)(b): 14.160, 16.170 s 70(1)(c): 14.160, 16.170 s 71(1)(b): 16.170 ss 71(2) to (4): 16.170 S 72( 1): 14.160 s 98: 14.160 s 98(1): 14.160 s 98(3)(b ): 14.160 s 98(3)(c): 14.160 s 98(3)(e): 14.160 s 98(3)(f): 14.160 s 98(3)(g): 14.160 s 98(7): 14.160 Pt 5: 14.160 Pt 8: 14.160, 16.170 Sch 1: 14.160, 16.170 Environment Effects Act 1978: 1.280, 13.180, 14.230, 18.110, 18.400 Environment Protection Act 1970: 1.280, 5.140, 7.280, 9.40, 9.100, 15.20, 15.30, 15.100, 15.140, 15.150, 15.250, 15.280, 15.380, 15.560, 15.600 s 1A(1): 5.140, 7.280 s 1A(3): 7.280, 15.250 s 18(1): 15.240 ss 1B to 1L: 15.240 ss 1C to 1E: 15.240 s 1D: 15.240 s 1F( 1): 15.240 s 1G: 7.280, 15.240 s 1G(1): 5.140, 15.240 s 1H: 5.140, 15.240 s 11: 5.140 s 1K: 15.240, 17.10 s 1K(a): 15.240 s 1K(b): 15.240 s 1K(c): 15.240 s 1L: 15.240 s 4: 5.140 s 4(1): 1.210, 15.30, 15.280, 15-440 s 13(1)(b): 15.30 s 13(1)(d): 15.30 s 16(1): 5.140, 7.280, 15.440 s 18(1): 15.440 ss 18A to 18D: 15.440 s 19AA(1): 5.140, 15.600 s 19AA(2): 15.600 s 19AA(3): 15.600 s 19AA(3)( e): 15.600 s 19AB: 10.280 s 19AB(1): 15.600 s 19AB(2): 5.140 s 19AB(2)(a): 15.600 ss 19AB(2)( c) to (f): 15.600 lxi

Table of Statutes

Australian Environmental Law

Environment Protection Act 1970 -

s 19AC(1): 5.140, 15.600 s 19A: 15.280, 17.390 s 19A(1): 15.280 s 19A(2): 15.280 s 198: 15.280 s 20: 15.280 s 20( 1): 15.280 s 20(1)(a): 15.30 ss 20(4) to (13): 15-280 s 20(: 5.140, 7.280 s 20((2): 5.140, 15.280, 15.440 s 20((3): 15.440 s 26A(1): 15.560 s 268(1): 15.560 s 268(2): 15.560 s 26D(1): 15.560 s 26D(2): 15.560 s 288: 17.250 s 31: 17.250 s 31A: 17.250 s 318: 17.250 s 31((1): 15.560 s 31((2): 15.560 s 31((4): 15.560 s 31C(6)(a): 15.560 ss 31C(6)(b) to (f): 15.560 s 338: 17.390 s 338(1): 17.390 s 338(2): 17.390 s 338(2)(a): 17.390 s 38: 15.440 s 39: 15.30 s 39(1): 10.130, 15.30, 15.380 s 41: 15.30 s 45: 15.30 s 45(1): 15.30 s 49AD: 7.280 s 505(1): 15.590 s 505(2): 15.590 s 50SA: 15.590 s 50SAA: 15.590 s 535: 17.240 s 53Y(1): 17.240 s 53Y(1)(a): 17.240 s 53Y(1)(b): 17.240 s 53Y(2): 17.240 s 53ZC(1): 17.240 s 54: 17.230 s 55: 17.230 s 57A: 17.320 s 59A: 17.320 s 59A8: 17.320 s 62: 17.250 s 62A: 17.250 s 638: 17.290 s 64A: 17.260 s 668: 17.300 !xii

cont

s 668(1A)(b) to (d): 17.300 s 668(1A)(c): 17.300 s 668(1A)(d): 17.300 s 668(18): 17.300 s 668(4A): 17.300 s 668(1): 17.300 s 668(4): 17.300 s 67AC: 17.310 s 70: 15.590 s 70(3)(ac): 15.590 s 70(6): 15.590 s 70(6A): 15.590 Pt IX: 5.140 Pt XI: 7.280 Fisheries Act 1968: 16.170 Fisheries Act 1995: 7.160 s 3(1): 7.170 s 10(1): 9.110 s 28(6): 7.160 s 29(1): 7.160 Flora and Fauna Guarantee Act 1988: 7.390, 13.90, 16.170 s 1: 7.390 s 4(1): 16.170 s 4(1)(d): 7.390 s 4(1)(e): 7.390 s 17(1): 13.90, 16.170 s 19(1): 13.90, 16.170 s 19(2): 13.90 s 20(1): 16.170 s 20(2): 16.170 s 21: 13.90 s 21(1): 16.170 s 26: 16.170 s 26(1): 16.170, 17.60 s 27(a): 16.170 s 27(b): 16.170 s 27(c): 16.170 s 27(d): 16.170 s 32: 16.170 s 36(1): 16.170 s 36(2): 16.170 s 39: 16.170 s 43(1): 16.170 s 43(2): 16.170 s 44: 16.170 ss 45 to 51: 16.170 s 61: 17.70 Forests Act 1958: 14.160 Greenhouse Gas Geological Sequestration Act 2008: 18.400 s 1: 18-400 s 3: 18.400 s 7: 18-400 s 14(1): 18-400

Greenhouse Gas Geological Sequestration Act 2008 - cont

s 15: 18.400 s 16: 18.400 s 165(3): 18.400 s 189: 18-400 s 190: 18.400 s 191: 18.400 s 192: 18-400 s 193(1): 18.400 s 195(1): 18.400 S 200: 18-400 s 224: 18-400 Heritage Act 1995 s 3: 16.260 Heritage Rivers Act 1992: 16.270 s 1: 16.270 s 5: 16.270 s 6: 16.270 s 7(1)(a): 16.270 s 7(2): 16.270 s 8: 16.270 s 9: 16.270 s 10: 16.270 ss 12(a) to (d): 16.270 s 12(1): 16.270 Sch 1: 16.270 Sch 2: 16.270 Sch 3: 16.270 Land Act 1958: 14.40, 14.160 s12: 14.40 s 53: 14-40 s 54: 14.40 s 55( 1)(b ): 14.40 s 55(1)(c): 14.40 s 55(1)(d): 14.40 s 55(1)(e): 14-40 s 121: 14.40 s 124(b): 14.40 s 124(e): 14.40 s 124(k): 14.40 s 124(1): 14.40 s 130: 14.40 s 134A: 14.40 s 137A: 14.40 s 137A(1): 14.40 s 138: 14.40 s 140A: 14.40 s 141: 14.40 s 146: 14.40 s 303: 14-40 Mineral Resources (Sustainable Development) Act 1990: 7.90, 14.230 s 1: 7.90, 14.230 s 2: 7.90

s 2(1)(a): 7.90 s 2(1)(b)(i): 7.90, 14.230 s 2(1)(b)(iii): 14.230 s 2A(1): 7.90 s 2A(2): 7.90 ss 6(1)(b) to ( c): 14.230 s 7(1): 14.230 s 7(3): 14.230 s 9: 14.200 s 26(2): 7.90 s 26(2)(a): 14.230 s 26(2)(b ): 14.230 s 26(2)( c): 14.230 s 26(2)(d): 14.230 s 26(2)(g): 14.230 s 26(2)(ha): 14.230 s 26A(2): 14.230 s 38: 17.100 s 40(1A): 14.230 s 40(3): 14.230 ss 40(3A) to (5): 14.230 s 42(1): 14.230 s 42(2)(a): 14.230 s 78( 1): 14.230 s 78(2): 14.230 s 79(a): 14.230 s 81: 14.230 s 83(1): 14.230 s 958: 17.100 National Parks Act 1975: 16.170 s 4: 16.170 s 4(a): 16.170 s 4(a)(i): 16.250 s 4(a)(ii): 16.250 s 17(2)(a): 16.170 s 17(2)(a)(i): 16.170 s 17(2)(a)(ii): 16.170 s 17(2)(d): 16.170 s 17A(2): 16.170 s 178: 16.170 s 18(2)(a): 16.170 s 18(2)(d): 16.170 s 19F: 16.170 s 21: 16.170 s 21((1): 16.170 s 32C: 16.170 s 43: 16.170 Schs 2 to 5: 16.170 Petroleum Act 1998: 7.90 s 3(1): 7.90 s 3(2): 7.90 s 161(1)(a): 7.90 Pipelines Act 2005: 7.90 s 3( e): 7.90 s 3(f): 7.90 s 4: 7.90 !xiii

Table of Statutes

Australian Environmental Law

Pipelines Act 2005 -

cont

s 4(1): 7.90 s 4(2): 7.90 s 49: 7.90 Planning and Environment Act 1987: 10.180, 13.240, 18.110, 18.230, 18.290, 18.320, 18.350 s 1: 13.240 s 4: 7.220 S 4(1): 7.220, 11.260, 18.110, 18.320 s 4(1)(a): 13.240, 18.200 s 4(1)(b): 13.240, 18.200 s 4(1)(d): 13.240 s 4(1)(e): 18.200 s 4(1)(f): 7.220 S 4(2): 7.220 s 4(2)( c): 13.240 s 4(2)( d): 13.240 s 6(1): 18.110 s 6(1)(a): 7.220 s 12(2): 18.110 s 60(1): 11.260 s 60(1)(b): 7.220 s 60(1)(e): 18.290 s 79C(1)(e): 18.200 s 114(1): 17.150 s 120: 17.150 s 123(1): 17.150 s 125: 17.150 s 128: 17.110 S 130: 17.110 s 133: 17.120 Subdivision Act 1988: 10.180 s 18: 10.180 s 18(1): 10.180 s 18(1A): 10.180 Sustainability Victoria Act 2005: 7-430 s 6: 7.430 s 7( c): 7.430 Sustainable Forests (Timber) Act 2004: 7.60 s 5: 7.60 s 5(1): 7.60 s 5(2): 7.60 s 5(3): 7.60 s 5(4): 7.60 s 6: 7.60 s 11(2): 7.60 s 13: 7.60 s 19(a): 7.60 Water Act 1989: 7.120, 10.120 S 1: 7.120 s 16: 10.120 s 16(1)(a): 10.120 s 22C: 7.120 lxiv

s 32A: 7.120 s 32A(1): 7.120 s 157: 10.120 s 157(1)(a): 10.120 Wildlife Act 1975: 16.170 s 1A(a): 16.170 s 16(1): 16.170 s 41(1): 16.170 s 43(1): 16.170 s 44(1): 16.170 s 45(1): 16.170 s 47(1): 16.170 s 47D(1): 16.170 s 50(1): 16.170 s 51(1): 16.170 s 52: 16.170 s 53: 16.170 s 54: 16.170 s 58(1): 16.170 ss 59 to 59C: 17.50 s 60: 17.50 Pt X: 16.170

WESTERN AUSTRALIA Agriculture and Related Resources Protection Act 1976: 14.50 Conservation and Land Management Act 1984: 7.380, 13.70, 14.170, 16.180 s 3: 13.70 s 5(1): 16.180 s 8(1): 14.170 s 10(1): 14.170 s 13A(1): 16.180 s 13A(1)(a): 16.180 s 13A(1)(b): 16.180 s 13A(2): 16.180 s 138(1): 16.180 s 138(5) to (9): 16.180 s 19(1)(c): 7-380 s 19(1)( c)(i): 14. 170 s 19(1)(c)(iii): 14.170 s 19(1)(f): 14.170 s 19(1)(g)(ii): 14.170 s 19(1)(h): 14.170 s 19(1)(i): 14.170 s 19(2): 14.170 s 19(3): 14.170 s 33: 16.180 S 33(1): 11.200 s 33(1)(a)(i): 11.200 s 33(1)(d): 11.200, 16.180 s 33(3): 11.200 s 33(3)(a): 11.200, 16.180 s 33(3)(b)(i): 16.180 s 33(3)(b)(ii): 16.180

conservation and Land Management Act

1984-cont s 33A(1): 16.180 s 33A(2): 16.180 s 54(1)(a): 14.170 s 54(1): 13-70 s 55(1)(a): 14.170 s 55(1): 13.70 s 56: 14.170 s 56(1): 13.70, 16.180 s 56(1)(a): 14.170 s 56(1)(b ): 14.170 s 56(1)(c): 7-380, 16.180 s 56(1)(d): 13.70, 16.180 s 60: 14.170 s 60(2): 14.170 s 62(1): 14.170 s 114A(1): 17.70 Pt VIII: 14.170

Electricity Act 1945: 14.210 s 33E(1)(a): 14.210 Pt IV8: 14.210 Electricity Corporation Act 2005: 14.210 s 5: 14.210 Environmental Protection Act 1986: 7.360, 13.180, 13.240, 14.50, 14.210, 15.480, 17.290 s 3(1): 1.270, 15.60, 15.130 s 3(2): 1.270 s 3A(1): 15.60 s 4A: 7.360, 15.170 s 5: 15.170 s 15: 7.360, 15.130, 15.170 s 16(b): 15.130 s 16(c): 15.130 s 16(d): 15.130 s 16( e): 15.130 s 33(1): 15.480 s 35(1): 15.480 s 35(1a): 15.480 ss 35(2)(f)(i) to (iii): 15.480 s 44: 1.270 s 48A(1): 13.240 s 48A(2): 13.240 s 48A(3): 13.240 s 48F: 13.240 s 48H: 17.180 s 48J: 13.240 s 49: 15.130 s 49(2): 15.130, 15.360 s 49(3): 15.60, 15.360 s 49(4): 15.360 s 49(5): 15.360 ss 50(1) to (3): 15.360 s 50(2): 15.60 s 53(1)(a): 15.270

s 65: 17.250 s 69: 17.250 s 71: 17.250 s 73: 17.250 s 74: 15.360 s 74(1)(a): 15.360 s 74(1a)(a): 15.360 s 74(1a)(b): 15.360 s 74(1)(b): 15.360 s 81: 17.250 s 88(1): 17.290 s 89: 17.230 s 95: 17.230 s 99H: 17.290 s 99J: 17.290 s 99J(1): 17.290 s 99K(1)(b): 17.290 s 99K(3)(a): 17.290 s 99K(3)(b ): 17.290 s 990(1): 17.290 s 99U: 17.310 s 1108: 15.590 s 110H(3)(a): 15.590 s 110H(4)(a): 15.590 s 118: 17.300 s 990(2): 17.290 PtV: 15.360 Environmental Protection (Landfill) Levy Act 1998: 15.590 Fish Resources Management Act 1994 s 3(1): 7.150 s 3(2): 7.150 Forest Products Act 2000: 14.170 s 4: 14.170 s 10(1)(c): 14.170 s 10(1)( d): 14.170 s 10(1)(g)(i): 14.170 s 10(1)(q): 14.170 s 11: 14.170 S 12(1): 14.170 s 12(2): 14.170 s 12(3): 14.170 s 12(4): 14.170 s 14: 14.170 s 23: 14.170 s 24: 14.170 s 30: 14.170 s 32: 14.170 Heritage of Western Australia Act 1990: 16.260 s 3(1): 16.260 Land Administration Act 1997: 14.50 s 15: 14.50 ss 15(4)(a) to (c): 14.50 s 15(4)(e): 14.50 lxv

Australian Environmental Law

Land Administration Act 1997 s 15(7)(b ): 14.50 s 15(8): 14.50 s 41: 14.50 s 74: 14.50 s 75: 14.50 s 79: 14.50 s 91: 14.50 s 104: 14.50 s 106(1): 14.50 s 107(1): 14.50 s 108(1): 14.50 s 108(2): 14.50 s 108(4): 14.50 s 117: 14.50 s 118: 14.50 s 119: 14.50 s 120: 14.50 S 121: 14.50 s 122: 14.50

Table of Statutes

cont

Mining Act 1978: 14.210 s 6(1): 14.210 s 96: 17.100 s 98: 17.100 S 120: 14.210 Petroleum Pipelines Act 1969: 14.210 s 10(2)(d): 14.210 S 41(1): 14.210 s 67(1)(a): 14.210 Petroleum and Geothermal Energy Resources Act 1967: 14.210 S 91(1): 14.210 Planning and Development Act 2005: 7.210, 13.240 S 3(1): 7.210, 13.240 s 26(1): 18.200 S 27: 7.210 s 27(b) and (g): 18.200 s 85: 13.240 s 214: 17.180 s 215: 17.180 s 217: 17.180 s 217(4): 17.180 s 218: 17.180 s 241: 13.240 Sch 7: 7.210 Sch 7, para 4(2): 13.240 Rights in Water and Irrigation Act 1914: 5.130 s 4: 5.130 s 4(1)(a)(i): 5.130 s 4(1)(a)(ii): 5.130 s 4(1)(b): 5.130 s 4(1)(d): 5.130 s 4(2): 5.130 !xvi

ECUADOR

PHILIPPINES

Constitution of Ecuador Art 7: 4.20 Art 406: 4.20

Constitution of the Philippines 1987 s 15: 4.40 Art II, s 16: 4.40

GERMANY

SOUTH AFRICA

Soil and Land Conservation Act 1945: 14.50

Basic Law of Germany Art 2(2): 4.110

Town Planning and Development Act 1928 s 214(3): 17.180

Constitution of Bavaria 1946 Art 141(3): 4.50

Wildlife Conservation Act 1950: 14.50, 16.180, 17.50 s 16(1): 16.180 s 16A(1): 16.180 s 17(1): 16.180 s 17(2): 16.180 s 20: 17.50 s 20(2): 17.50 s 20(2)(a): 17.50 s 20(2)(b): 17.50 s 22: 16.40 s 23B( 1): 16.180 s 23D(1): 16.180 s 23E(1): 16.180 s 23F(4): 16.180

GREECE

Constitution of the Republic of South Africa 1996 s 7: 4.30 s 24: 2.240, 4.30 s 36: 4.30 s 38: 4.30 s 39(1): 4.30 s 39(2): 4.30 Ch 2: 2.240

Sch 11 cl 1: 5.130 Sch 1, cl 7(1): 5.130 Sch 1, cl 7(2): 5.130 Sch 11 cl 7(2)(a): 5.130 Sch 1, cl 7(2)(b): 5.130 Sch 11 cl 7(2)( c): 5.130 Sch 1, cl 7(2)(d): 5.130

BULGARIA Environmental Protection Act 1991: 1.170 S 1(1): 1.170

CHINA Constitution of the People's Republic of China 1982 Art 9: 4.60 Art 26: 4.60 Environmental Protection Law 1989: 1.200, 5.60 Art 1: 1.200, 5.60 Art 2: 1.200 Art 4: 5.60 Art 6: 5.60 Art 13: 5.60 Art 24: 5.60 Arts 35 to 45: 5.60

Constitution of Greece 1986 Art 24: 4.80 Art 24 1 para 1: 4.80

INDIA Constitution of India: 4.100 Art 21: 4.100 Art 32: 4.100 Art 37: 4.100 Art 48-A: 4.100 Art 51-A: 4.100 Environment (Protection) Act 1986: 1.190 s 2(a): 1.190 s 2(b): 1.190 s 2(c): 1.190

INDONESIA Act on Spatial Use Management 1992: 5.70 Art 1(1): 5.70 Art 1(3): 5.70 Art 2: 5.70 Art 3: 5.70 Art 4(1): 5.70 Art 5(1): 5.70 Art 5(2): 5.70 Art 14: 5.70 Art 14(1): 5.70 Art 14(2): 5.70

JAPAN Constitution of Japan Art 13: 4.120

COLUMBIA Constitution of Colombia Art 11: 2.210 Art 79: 2.210 Art 86: 2.210

NEW ZEALAND Resource Management Act 1991 S 5(2): 18.210 s 7: 18.210

Environment Conservation Act 1989: 1.180 s1:1.180 National Environmental Management Act 1998: 1.180 s 1(1)(xvi): 1.180 s 2: 1.180

SOUTH KOREA Framework Act on Environmental Policy 1990: 5.50 Art 1: 5.50 Art 2: 5.50 Art 4( 1): 5.50 Art 5: 5.50 Art 6: 5.50 Art 7: 5.50 Art 25: 5.50 Art 25( 1): 5.50 Natural Environment Conservation Act 1991: 5.50

UNITED STATES Clean Air Act: 18.70 Constitution of the State of Illinois: 4.90 s 1: 4.90 Art 11, s 2: 4.90 Constitution of the United States of America: 4.140 National Environmental Policy Act 1969: 1.150, 4.290, 5.20 s 2: 5.20 s 101: 5.20 s 101(a): 1.150, 5.20 s 101( c): 5.20 s 102(2)( c): 5.20 !xvii

Table of Statutes

Australian Environmental Law

National Environmental Policy Act

1969-cont 5 102(2)(C): 1.150 Washington State Environmental Policy Act 1971: 5.30

UNITED KINGDOM Environment Act 1995: 5.90 s 4(1): 5.90 s 4(2): 5.90 ss 4(6) to (8): 5.90 s 4(9): 5.90 Environmental Protection Act 1990: 1.160 s 1(2): 1.160 5 1(3): 1.160

TREATIES AND CONVENTIONS Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998: 3.190 Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment 1986: 3.100 Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment 1974: 3.100 Apia Convention on Conservation of Nature in the South Pacific 1976: 3.100, 3.140 ArtV(1): 3.140 Art 11(1): 3.140 Art 111(1): 3.140 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989: 3.40, 3.100 Bonn Convention on the Conservation of Migratory Species of Wild Animals 1979: 3.100 Brussels Convention on Civil Liability for Oil Pollution Damage 1969: 3.40 Convention for the Protection of the Ozone Layer 1985: 1.120 !xviii

Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993: 1.140 Convention on Environmental Impact Assessment in a Transboundary Context 1991: 1.130 Convention on the Conservation of Antarctic Marine Living Resources 1980 Art 11(1): 6.70 Convention on the Law of the Sea 1982: 1.120 Pt XII: 1.120 Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992: 6.90 Art 2(1): 6.90 Art 2(2): 6.90 Art 2(5): 6.90 Art 3(1)(i): 6.90 Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1991: 3.180 Art 1(vii): 1.130 European Convention on Human Rights 1950 Art 8: 2.190 Geneva Convention on Long-Range Transboundary Air Pollution 1979: 3-40, 3.170 International Convention on Civil Liability for Oil Pollution Damage 1992 Art 1(6)(a): 1.110 Art 1l(a): 1.110 International Covenant on Civil and Political Rights 1966: 2.160 Art 1(2): 2.160 Art 4: 3.40 Art 27: 2.200, 4.120 Art 47: 3.20 International Covenant on Economic, Social and Cultural Rights 1966: 2.160 Art 1: 2.160 Art 2: 2.160 Art 4: 2.160 Art 12(2)(b ): 2.160 Art 21: 2.160 Art 22: 2.160

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change: 1.120, 3.130, 3.170, 4.320, 15.10, 18.30, 18-410, 18.450 Art 2: 1.120 Art 3: 1.120 Art 3(1): 3.130 Art 4: 3.130 Art 6: 3.130 Art 12: 3.130

Paris Convention to Combat Desertification in Those Countries Experiencing Drought and/or Desertification, Particularly in Africa 1994: 3.30, 3.40 Arts 9 to 11: 3.180

London Convention for the Prevention of Marine Pollution by Dumping of wastes and Other Matter: 3.40

Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes: 6.90 Art 1: 6.90 Art 4(1): 6.90 Art 5: 6.90

London Convention for the Prevention of Pollution from Ships 1973: 3.40 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993: 3.180 Art 2(5): 1.140 Art 2(7)( c): 1.140 Art2(10):1.140 Art 6: 1.140 Art 7: 1.140

Protocol on Environmental Protection to the Antarctic Treaty 1991 Art 2: 6.70 Art 3(1): 6.70

Ramsar Convention on Wetlands of International Importance 1971: 3.40, 3.100, 3.110 Art 2, para 3: 3.50 Art 2(1): 3.110 Art 2(2): 3.110 Art 2(4): 3.110 Art 4: 3.110 Rio Declaration: 6.60, 7.10

Montreal Protocol on Substances that Deplete the Ozone Layer 1987: 1.120, 3.100, 3.170 Arts 2A to 2H: 1.120 Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986: 3.100, 3.150 Art 2( a )(i): 3.150 Art 2(f): 3.150 Art 5: 3.150 Art 5, para 1: 3.150 Art 7: 3.150 Art 9: 3.150 Art 13: 3.150 Oslo Protocol on Further Reduction of Sulphur Emissions 1994 Art 6: 3.180 Paris Convention for the Protection of the World Cultural and Natural Heritage 1972: 1.120, 3.40, 3.100, 3.260, 4.300, 10.30, 13.150, 16.20, 16.30, 16.60, 16.240 Art 3: 16.30 Art 6, para 1: 3.50 Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960: 3.180

Statute of the River Uruguay 1975: 3.60 Stockholm Declaration of 1972: 6.60 Principle 21: 1.290 Treaty Establishing the European Community Art 2: 4.70 Art3(e):4.70 Art 6: 4.70 Arts 174 to 176: 4.70 Art l-2: 4.70 Art l-3: 4.70 Art ll-97: 4.70 Art 111-233: 4.70 United Nations Convention on Biological Diversity 1992: 3.30, 3.40, 3.100, 3.120, 3.260, 6.80, 16.20, 16-40, 16.70 Art 1: 3.120, 6.80 Art 2: 3.120, 16.40 Art 4: 3.120 Art 6(b ): 16.40 Art 8: 6.80 Art 8(a): 16-40 Art 8(b ): 16.40 Art 8(c): 16-40 Art 8(d): 16.40 Art 8(e): 6.80 Art 8(f): 16-40 lxix

Australian Environmental Law

United Nations Convention on Biological Diversity 1992 - cont

Art 14: 3.180 Art 27(3): 3.120 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses 1997: 6.90 Art 5: 6.90 Art 5(1): 6.90 Art 6: 6.90 Art 7: 6.90 Art 20: 6.90 Art 21(2): 6.90 United Nations Convention on the Law of the Sea 1982: 3.30, 3.160, 3.170, 4.320, 6.70 Art 192: 1.120, 3.160 Art 193: 1.120 Art 194, para 1: 3.160 Art 207(1): 1.120 Art 210(1): 1.120 Pt XII: 3-40 United Nations Convention to Combat Desertification 1994: 6.80 Art 2(1): 6.80 Art 2(2): 6.80 Art 4(2): 6.80 Art 4(2)(d): 6.80 United Nations Framework Convention on Climate Change 1992: 1.120, 3.30, 3.100, 3.130, 3.170,' 3.260, 4.320, 6.80, 13.40, 18.30, 18.100, 18.410, 18-450 Art 1(2): 1.120

Art 1(3): 1.120, 3.130 Art 2: 1.120, 3.130, 6.80 Art 3: 1.120, 6.80 Art 3(1): 3.130 Art 3(2): 3.130 Art 3(3): 3.130 Art 3(4): 6.80 Art 4: 1.120 Art 4, para 1: 3.130 Art 4, para 2: 3.130 Art 4(2)(a): 3.130 Universal Declaration of Human Rights 1948: 2.160 Art 3: 2.160 Art 7: 2.160 Art 15: 2.160 Art 17: 2.160 Art 18: 2.160 Vienna Convention for the Protection of the Ozone Layer 1985: 3.30, 3.40, 3.100, 3.170 Art 2(1): 1.120 Art 2(2)(a): 3.180 Art 3: 3.180 Art 4: 3.180 Art 5: 3.180 Vienna Convention on Civil Liability for Nuclear Damage 1963 Art l(l)(k): 1.110 Art 11(1): 1.110 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973: 3.40, 3.100

SELECTED BIBLIOGRAPHY OF ENVIRONMENTAL TEXTS by Patricia Escalon, Research Assistant Alam, Shawkat, Routledge handbook of international environmental law (Routledge, 2013) Andresen, Steinar; Boasson, Elin Lerum and HnAuneland, Geir, International

environmental agreements: an introduction (Routledge, 2012) Anton, Donald K and Shelton, Dinah, Environmental protection and human rights (Cambridge University Press, 2011) Australia, Dept of Industry, Tourism and Resources, Working with Indigenous

Communities, Leading Practice Sustainable Development Program for the Mining Industry (Dept of Industry, Tourism and Resources, 2007) Australian State of the Environment Committee, Australia State of the Environment 2006: At a Glance (Dept of the Environment and Heritage, 2006) Barton, Barry, Regulating energy and natural resources (Oxford University Press, 2006) Bates, G M, Environmental law in Australia (LexisNexis Butterworths, 2009) Beder, Sharon, Environmental Principles and Policies: An Interdisciplinary Introduction (Taylor and Francis, 2013) Bernosky, Joseph J, Overview of environmental laws and regulations: navigating the green maze (American Water Works Association, 2011) Beyerlin, Ulrich and Marauhn, Thilo, International environmental law (Hart, 2011) Bodansky, Daniel, The art and craft of international environmental law (Harvard University Press, 2010) Boer, Ben, et al, Environmental outlook no 3: law and policy (Federation Press, 1999) Boer, Ben and Wiffen, Graeme, Heritage law in Australia (Oxford University Press, 2006) Bogojevic, Sanja, Emissions Trading Schemes: Markets, States and Law (Hart Publishing Ltd, 2013) Bonyhady, Tim and Christoff, Peter, Climate law in Australia (Federation Press, 2007) Bonyhady, Tim and Macintosh, Andrew, Mills, Mines and Other Controversies (Federation Press, 2010) Borzsak, Levente, The impact of environmental concerns on the public enforcement mechanism under EU law: environmental protection in the 25th hour (Wolters Kluwer, 2011) Bosselmann, Klaus, The principle of sustainability: transforming law and governance (Ashgate Publishing Ltd, Aldershot, 2008) Bouthiller, Yves Le; Cohen, Miriam Alfie and Gonzalez Marquez, Jose Juan, Poverty Alleviation and Environmental Law (Edward Elgar Publishing, 2012) Burnett-Hall, Richard and Jones, Brian, Burnett-Hall on environmental law (Sweet & Maxwell, 2012) Callicott, J Baird, Earth's Insights (University of California Press, Berkeley, 1994)

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Australian Environmental Law

Selected Bibliography of Environmental Texts

Clarke, Pepe and Environmental Defender's Office, Environmental law toolkit NSW: a community guide to environmental law (5th ed, Federation Press, 2005)

Holley, Cameron; Cunningham, Neil and Shearing, Clifford, The New Environmental Governance(Taylor and Francis, 2013)

Connell, Daniel, Water politics in the Murray-Darling Basin (Federation Press, 2007)

Hunter, David; Salzman, James and Zaelke, Durwood, International environmental law and policy (Foundation Press/Thomson Reuters, 2011)

Cory, Dennis C and Rahman, Tauhidur, Environmental Justice and Federalism (Edward Elgar Publishing, 2013) Diekman C, Environmental law (Butterworths, 1998).

Jessup, Brad and Rubenstein, Kim, Environmental Discourses in Public and International Law (Cambridge University Press, 2012)

DiMento, Joseph F and Hickman, Alexis Jaclyn, Environmental governance of the

Kerbrat, Yann and Maljean-Dubois, Sandrine, The transformation of international

great seas: law and effect (Edward Elgar, 2012)

environmental law (Hart Publishing, 2011)

Dovers, Stephen and Wild River, Su, Managing Australia's Environment (Federation Press, Annandale, 2003)

Kingston, Suzanne, European Perspectives on Environmental Law and Governance (Taylor and Francis, 2013)

Elliot, Mandy and Thomas, I G, Environmental impact assessment in Australia: theon; and practice (5th ed, Federation Press, 2009)

Kotze, Louis J, Global Environmental Governance: Law and Regulation for the 21st Centun; (Edward Elgar Publishing, 2013)

England, Philippa, Integrated Planning in Queensland (2nd ed, Federation Press, 2004)

Kramer, Andrea S and Fusaro, Peter C, EnergtJ and environmental project finance law and taxation: new investment techniques (Oxford University Press, 2010)

Eni-Ibukun, Tomilola Akanle, International Environmental Law and Distributive Justice: The Equitable Distribution of CDM Projects under the Kyoto Protocol (Taylor

Kreiser, Lawrence A, Green taxation and environmental sustainabilihJ (Edward Elgar, 2012)

and Francis, 2013) Environmental Defender's Office, NSW, Campaigning and the law in NSW: a guide to your rights and responsibilities (Environmental Defender's Office, 2007)

Kuehr, Ruediger, Japan's Transnational Environmental Policies: The Case of Environmental Technology Transfer to Newly Industrializing Countries (Peter Lang GmbH, Internationaler Verlag der Wissenschaften, 2012)

Farrier, David and Stein, Paul L, The environmental law handbook: planning and land use in NSW (Thomson Reuters, 2006)

Kysar, Douglas A, Regulating from nowhere: environmental law and the search for objectivity (Yale University Press, 2010)

Fisher, D, Legal Reasoning in Environmental Law: Techniques for Sustainable Governance (Edward Elgar Publishing, 2013)

Laitos, Jan S, The Right of Nonuse (Oxford University Press, 2012)

Fisher, Douglas, Legal reasoning in environmental law: a study of structure, form and language (Edward Elgar Publishing, 2013) Fisher, Elizabeth; Jones, Judith S and Schomberg, Rene von, Implementing the precautionary principle: perspectives and prospects (Edward Elgar Publishing, 2006) Fitzmaurice, M; Ong, David M and Merkouris, Panos, Research handbook on international environmental law (Edward Elgar, 2010) Godde~, Lee and Peel, Jacqueline, Environmental law: scientific, policy and regulatory dzmenswns (Oxford University Press, 2009) Graham, Nicole, Dr, Lawscape: property, environment, law (Routledge, 2011) Gullett, Warwick, Fisheries law in Australia (LexisNexis Butterworths, 2008) Cumley, Wayne; Daya-Winterbottom, Trevor and National Environmental Law Ass~ciation of Australia, Climate change law: comparative, contractual & regulatory

constderatwns: proceeding of the 2008 conference of the National Environmental Law Association at Freemantle (Thomson Reuters, 2009) Harding, Ronnie; Hendriks, Caroline M and Faruqi, Maureen, Environmental decision-making: exploring complexity and context (Federation Press, 2009) Haydon, John, et al, Planning & environmental issues for the conveyancer: papers presented at a seminar held in Brisbane on Wednesday 8 September 2004 (Legalwise Seminars, 2004) Hodgkinson, David and Garner, Renee, Global climate change: Australian law and

policy (LexisNexis Butterworths, 2008) l)()(ii

Lucy, Juliet Rosemary and Riordan John A, Water regulation: the laws of Australia (Thomson Reuters, 2008) Lyster, Rosemary, Environmental and planning law in New South Wales (Federation Press, 2012) Macdonald, Ros and School of Law Queensland University of Technology, Ecologically sustainable coastal management: a legal blueprint (2003) Macrory, Richard, Regulation, enforcement and governance in environmental law (Hart Publishing, 2010) Makuch, Karen E and Pereira, Ricardo, Environmental and energy law (Wiley Blackwell, 2012) Martin, Paul; Li, Zhiping and Qin, Tianbao, Environmental Governance and Sustainability (Edward Elgar Publishing, 2012) Matata, Peter, Environmental Law Regulations of Pesticide Usage (Diplomica Verlag, 2012) McGrath, Chris, Synopsis of the Queensland environmental legal system (4th ed, Environmental Law Publishing, 2006) McGrath, Chris, Surreal Economic Debate on Climate Change (Environmental Law Publishing, 2008) McGrath, Chris, Does environmental law work?: how to evaluate the effectiveness of an environmental legal system (Lambert Academic Pub, 2010) McGrath, Chris and Faculty of Law, Queensland University of Technology, How to

evaluate the effectiveness of an environmental legal system (2007)

Australian Environmental Law

Morgera, Elisa, The External Environmental Policy of the European Union: EU and International Law Perspectives (Cambridge University Press, 2012) Mottles, Richard, Environmental judicial review (Hart Pub, 2011) Nanda, Ved and Pring, George, International Environmental Law and Policy for the 21st Century (2nd ed, Brill, 2012) Nolan, Derek, Environmental and resource management law (LexisNexis NZ, 2011) O'Brien, Leanne, Enforcement of planning and environmental laws in Queensland (Presidian Legal Publications, 2009) Paddock, LeRoy, Compliance and enforcement in environmental law: toward more effective implementation (Edward Elgar, 2011)

Selected Bibliography of Environmental Texts

Stoeckel, Kate, Australian water law (Thomson Reuters, 2012) Taylor, Paul, Respect for Nature: a Theory of Environmental Ethics (Princeton University Press, 1986) Taylor, Prue, Ecological Approach to International Law (Taylor and Francis, 2012) Thomas, Ian, Environmental policy: Australian practice in the context of theory (Federation Press, 2007) Thomas, I G and Elliott, Mandy, Environmental impact assessment in Australia: theory and practice (4th ed, Federation Press, 2005) Tooma, M, Safety, security, health and environment law (Federation Press, 2008)

Peel, Jacqueline, The precautionary principle in practice: environmental decision-making and scientific uncertainty (Federation Press, 2005)

Tromans, Stephen, Environmental impact assessment (Bloomsbury Professional, 2012) Turner, Stephen J, A Global Environmental Right (Taylor and Francis, 2013)

Philippopoulos-Mihalopoulos, Andreas, Law and ecology: new environmental foundations (Routledge, 2011)

Vianuales, Jorge, Foreign investment and the environment in international law (Cambridge University Press, 2012)

Preston, Brian J; Donnelly, Hugh and Judicial Commission of New South Wales, Achieving consistency and transparency in sentencing for environmental offences CTudicial Commission of New South Wales, 2008)

Walker, Gordon, Environmental justice: concepts, evidence and politics (Routledge, 2012) Westra, Laura, Environmental Justice and the Rights of Unborn and Future Generations: Law, Environmental Harm and the Right to Health (Taylor and Francis, 2012)

Queensland. Environmental Protection Authority, State of the environment Queensland 2003: implementing the legislation (Environmental Protection Authority, 2004) Razzaque, Jona, Environmental Governance in Europe and Asia: A Comparative Study of Institutional and Legislative Frameworks (Taylor and Francis, 2012) Reis, Tarcisio Hardman, Compensation for environmental damages under international law: the role of the international judge (Kluwer Law International, 2011) Reynolds, Christopher, Public and environmental health law (Federation Press, 2011) Richardson, Benjamin J, Local climate change law: environmental regulation in cities and other localities (Edward Elgar, 2012)

White, M W D, Australasian marine pollution laws (2nd ed, Federation Press, 2007) White, Rob, Environmental harm: An eco-justice perspective (Policy Press, 2013) White, RD, Global environmental harm: criminological perspectives (Willan Publishing, 2010) White, R D, Transnational environmental crime: toward an eco-global criminology (Routledge, 2011) White, Rob (ed), Environmental Crime: A reader (Willan Publishing, 2009) Wilkinson, David, Environment and Law (Taylor and Francis, 2012)

Robinson, N A, et al, Dictionary of Environmental and Climate Change Law (Edward Elgar Publishing, 2013)

Wolf, Susan and Stanley, Neil, Wolf and Stanley on Environmental Law (4th ed, Taylor and Francis, 2012)

Rothwell, Donald and Vander Zwaag, David L, Towards principled oceans governance: Australian and Canadian approaches and challenges (Routledge, 2006)

Zahar, Alexander; Peel, Jacqueline and Godden, Lee, Australian climate law in global context (Cambridge University Press, 2013) Zengerling, Cathrin, Greening International Jurisprudence: Environmental NGOs before International Courts, Tribunals, and Compliance Committees (Brill, 2013)

Ruhl, J B, et al, Berkshire Encyclopedia of Sustainability: The Law and Politics of SustainabilihJ (Berkshire Publishing, 2011) Sage-Fuller, BThe Precautionary Principle in Marine Environmental Law: With Special Reference to High Risk Vessels (Taylor and Francis, 2013) Sands, Philippe, et al, Principles of international environmental law (Cambridge University Press, 2012) Shigeta, Yasuhiro, International judicial control of environmental protection: standard setting, compliance control, and the development of international environmental law by the international judician; (Kluwer Law International, 2010) Singh, Jack, Sustainable development and environmental issues: examined through selected essays, questions and answers (Prestige Books in association with Vedanta Books, 2011) Stein, P L and Farrier, David, The environmental law handbook: planning and land use in NSW (4th ed, UNSW Press, 2006) lxxiv

lxxv

SELECTED BIBLIOGRAPHY OF PERIODICAL LITERATURE by Patricia Escalon, Research Assistant This Bibliography covers periodical literature from 2000 to 2014. Periodical literature prior to 2000 can be found in the first edition of this book. Key to Subject Environmental Planning II Air Pollution Ill Noise Pollution IV Solid Waste V lnternal Waters VJ Marine Waters VII Toxic and Hazardous Substances VIIl Nature Conservation Terrestrial IX Nature Conservation Marine X Cultural Environment Conservation Xl Resource Allocation XII Development XIIl Environmental Law: Miscellaneous

XVll XVlll XIX

Corporate environment offences Environmental Litigation Enforcement of Environmental Offences lnvasive Species Judicial Review Noise Pollution

TP

Town Planning

CT

Carbon Trading

cc

Climate Change

ss

Standing to Sue Sustainable Development Renewable Energy

XIV

xv XV]

SD RE

Abbot, Carolyn, "The enforcement of pollution control laws in England and Wales: a case for reform?" (2005) 22 Environmental and Planning Law Journal 68: VIII, VII Adam, Paul, "Ecological communities: the context for biodiversity conservation or a source of confusion?" (2009) 13 Australasian Journal of Natural Resources Law and Policy 7: I, VIII Adam, Paul and Preston, Brian J, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1: the assemblage of species and the particular area" (2004) 21 Environmental and Planning Law Journal 250: VIII Adams, Carol A and Zutshi, Ambika, "Voluntary guidelines: are they enough to sustain the environment?" (2004) 29 Alternative Law Journal 23: XIlI Alden, Scott and Eather, Alyson, "How the ETS will affect contracts" (2009) 47 Law Society Journal 44: CT Alford, Lindsey, "The law, the rules and mechanisms to consider when dealing in the property right of water: comparing the regulation of an emerging water market in Queensland with New South Wales, Victoria and South Australia" (2007) 22 Australian Property Law Journal 259: V Allars, Margaret, "To breed or to exhibit? The Asian elephants case and reasons for regulatory failure" (2007) 24 Environmental and Planning Law Journal 329: VIII

~

Alias, Marc, '"Ecologically sustainable development' in your local neighbourhood" • · (2001) 18 Environmental and Planning Law Journal 351: I lxxvii

Selected Bibliography of Periodical Literature

Australian Environmental Law

~

Allen, Claire, "Heritage rivers: protection for freshwater resources in a flurry of natural resource management reforms" (2004) 21 Environmental and Planning Law Journal 329: V Anderson, Helen and Gurnley, Wayne, "Corporate social responsibility: legislative options for protecting employees and the environment" (2008) 29 Adelaide Law Review 29: XIV, XIII

Baird, Rachel, "Australian government imposes custodial sentence for illegal foreign fishers" (2006) 23 Environmental and Planning Law Journal 253: IX Baird, Rachel, "Australia's response to illegal foreign fishing: a case of winning the battle but losing the law?" (2008) 23 International Journal of Marine and Coastal Law 95: VI, IX, SD

Andreen, William, "The evolving contours of water law in the United States: bridging the gap between water rights, land use and the protection of the aquatic environment" (2006) 23 Environmental and Planning Law Journal 5: V

Baird, Rachel, "Foreign fisheries enforcement: do not pass go, proceed slowly to jail: is Australia playing by the rules?" (2007) 30 University of New South Wales Law Journal 1: VI, IX, SD Baird, Rachel, "Testing the waters: fine tuning the provisions of the Fisheries Management Act 1991 (Cth) applicable to foreign fishing boats" (2004) 32 University of Western Australia Law Review 63: V, IX, SD

Andrews, Adam M, "Picking up on what's going underground: Australia should exempt carbon capture and geo-sequestration from Part IIIA of the Trade Practices Act" (2008) 17 Pacific Rim Law and Policy Journal 407: XIV, I, VIII, XI, SD

Baird, Rachel, "Arresting climate change through incremental steps: Massachusetts v Environmental Protection Agency" (2007) 24 Environmental and Planning Law Journal 245: CC

Andrews, Kevin, "Australian controls on the environmental application of biotechnology" (1988) 5 Environmental and Planning Law Journal 194: I, VIII, SD

Baird, Rachel, "Public interest litigation and the Environment Protection and Biodiversity Conservation Act" (2008) 25 Environmental and Planning Law Journal 410: XIII Baird, Rachel, "Big sticks, carrots and enforceable undertakings under the Environment Protection and Biodiversity Conservation Act 1999" (2011) 28

Anderson, Troy, "Caught: hook, line and sinker: the prosecution of fish poachers in Australian waters" (2008) 25 Environmental and Planning Law Journal 5: IX

Anker, Helle Tegner, "The Resource Management Act and protection of water quality: a comparison with European initiatives" (2003) New Zealand Journal of

Environmental Law 1: XI Annandale, David; Jenkins, Bryan and Morrison-Saunders, Angus, "The evolution of a sustainability assessment strategy for Western Australia" (2003) 20 Environmental and Planning Law Journal 56: SD Arcioni, Elisa, "What's in a name? The changing definition of weeds in Australia" (2004) 21 Environmental and Planning Law Journal 450: VIII Arcioni, Elisa, "Out damned weeds! Weed management in Australia: keeping them at bay" (2003) 8 Australasian Journal of Natural Resources Law and Policy 75: VIII Arcioni, Elisa, "Can catchment management deliver coordination of natural resource management in New South Wales?" (2001) 7 Australasian Journal of Natural Resources Law and PolietJ 169: I, V, SD

Environmental and Planning Law Journal 3: XV, XVI Baird, Warwick R and Lenehan, Rachel, "The process in NSW leading to joint management of Aboriginal owned land and the register of Aboriginal owners" (2002) 19 Environmental and Planning Law Journal 277: X Baker, Sarah, "Environmental protection at the intersection of international human rights and international environmental law" (2002) 7 Asia Pacific Journal of Environmental Law 51: I, IX, VIII Baldock, Richard, "National Gas (Queensland) Act" (2008) 27 Australian Resources

and Energy Law Journal 459: XI Banyard, Rod and Kwayrnullina, Arnbelin, "Tradeable water rights implementation in Western Australia" (2000) 17 Environmental and Planning Law Journal 315: I, V

Arthur, Paul, "Environmental protection orders, restraining orders and private prosecutions: an examination of the Environmental Protection Act 1994" (2002) 8 Queensland Environmental Practice Reporter 220: XIV

Barde, Jean-Philippe, "Removing market distortions: a prerequisite for sustainable development" (2007) Macquarie Law Journal 7: SD

Ashcroft, Ross, "Carbon capture and storage: a need for re-conceiving property interests and resource management in the Australian legal system" (2008) Lawasia Journal 70: II, CT

Barrymore, Stuart and Mathison, Ann-Maree, "Update: Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008 (Cth)" (2008) 27 Australian Resources and Energy Law Journal 469: CC

Ashcroft, R, et al, "Early land grants and reservations: any lessons from the Queensland experience for the sustainability challenge to land ownership" (2008) James Cook University Law Review 42: SD

Bartel, Robyn L, "Satellite imagery and land clearance legislation: a picture of regulatory efficacy?" (2004) 9 Australasian Journal of Natural Resources Law and Policy 1: SD

Bache, Sali Jayne, "Current Australian policy on marine wildlife bycatch" (2005) 22 Environmental and Planning Law Journal 212: IX

Bartel, Robyn L, "Compliance and complicity: an assessment of the success of land clearance legislation in New South Wales" (2003) 20 Environmental and Planning Law Journal 116: XIV, XIII, I

Baird, Matthew, "A comment on the draft report of the Productivity Commission's inquiry into the conservation of Australia's heritage places" (2006) 23 Environmental and Planning Law Journal 280: X, I, TP Baird, Rachel, "Coastal state fisheries management: a review of Australian enforcement action in the Heard and McDonald Islands Australian Fishing Zone" (2004) 9 Deakin Law Review 91: XIV, VI lxxviii

Bartlett, Richard, "Outstanding matters of proof and extinguishment left over from Ward and Yorta Yorta: De Rose in the full Federal Court" (2005) 24 Australian Resources and Energi; Law Journal 219: X, SS Bartlett, Richard, "Western Australia v Ben Ward and Others: (the 'Miriuwung Gajerrong case')" (1999) 19 Australian Mining and Petroleum Law Journal 82: X, VIII lxxix

Selected Bibliography of Periodical Literature

Australian Environmental Law

Barton, Barry, "Crown Minerals Act cases" (2006) New Zealand Law Journal 410: XI Barton, Charmain, "Disclosure of information in contaminated land transactions: a New South Wales perspective" (2006) 13 Australian Property Law Journal 291: XIV, VII

Barton, Philip, "Modifying and discharging restrictive covenants in Victoria" (2006) 80 Law Institute Journal 50: TP Bassett, Andrea, "Reefs, recreation and regulation: Addressing tourism pressures at the Ningaloo Coast World Heritage site" (2012) 29 Environmental and Planning Law Journal 239: SD Bastmeijer, Kees, "Tourism in Antarctica: increasing diversity and the legal criteria for authorisation" (2003) New Zealand Journal of Environmental Law 85: XIII, IX

Besier, Antoinette, "Leaving it all to the Resource Management Act 1991: the demise of the tort of private nuisance" (2004) 35 Victoria UniversihJ of Wellington Law Review 563: XIII Betz, Regina and Stafford, Ashley, "The policy issues arising with the linking of international emissions trading schemes" (2008) 27 Australian Resources and Energy Law Journal 86: II, CT, XIII, I Black, Celeste M, "Fringe benefits tax and the company car: aligning the tax with environmental policy" (2008) 25 Environmental and Planning Law Journal 182: XIV, XIII, I Blair, Ross, "Carbon get it" (2008) 82 Law Institute Journal 38: II, I, SD

Bates, Gerry; Meares, Kate, "Options for funding: Environmental compliance programs in New South Wales" (2010) 16 LGLJ 32: XV, XVI

Blay, Sam and Bubna-Litic, Karen, "The interplay of international law and domestic law: the case of Australia's efforts to protect whales" (2006) 23 Environmental and Planning Law Journal 465: IX

Bates, Rebecca, "The trade in water services: how does GATS apply to the water and sanitation services sector?" (2009) 31 Sydney Law Review 121: V

Bleyer, Vanessa, "Defending Victoria's forests: taking it to the courts - 2003" (2004) 29 Alternative Law Journal 65: VIII

Baumuller, Heike, "The Cartagena Protocol on Biosafety: environmental perspectives" (2001) 18 Environmental and Planning Law Journal 46: XIII, I, SD Beaufoy, Mark, "Potentially contaminated land in Victoria - challenges for local government" (2010) 15 LGLJ 179: VII Beder, Sharon, "Forum: costing the earth: equity, sustainable development and environmental economics" (2000) New Zealand Journal of Environmental Law 227: XIII, SD Beeby, Rosslyn, "Watching as our future drains away" (2009) 8: XIII Beeton, Robert J S and McGrath, Chris, "Developing an approach to the listing of ecological communities to achieve conservation outcomes" (2009) 13 Australasian Journal of Natural Resources Law and Policy 61: VIII Bell, Fraser, "Winery waste management: a legal context" (2000) 5 Flinders Journal of Law Reform 71: IV

Blumer, Mark, "In search of the common Bunyip: a commonsense approach to water property rights in NSW" (2000) 17 Environmental and Planning Law Journal 334: I, V

Blustein, Shol, "Towards low emissions in the electricity generation sector: Creating a coherent legal model for Australia" (2011) 28 Environmental and Planning Law Journal 77: RE Blustein, Shol, "Carbon financing and the Australian emissions trading scheme: Less emissions, more opportunities?" (2009) 20 Journal of Banking and Finance Law and Practice 191: CT Bodger, Amanda; Monks, Melissa and Younger, Rochelle, "The thin green line: are you too close to the edge?" (2008) 82 Law Institute Journal 52: XIV Bokelund, Hans P, "Obligations under the new Aboriginal Heritage Act" (2008) 82 Law Institute Journal 52: X, IS

Bell, Justine, "Planning for climate change and sea level rise - Queensland's new Coastal Plan" (2012) 29 Environmental and Planning Law Journal 61: IX, SD, CC

Bonney, Stephanie Adelle, "Bioprospecting, scientific research and deep sea resources in areas beyond national jurisdiction: a critical legal analysis" (2006) New Zealand Journal of Environmental Law 41: I, VIII, SD

Bell, Justine, "Tree clearing, hunger strikes and Kyoto targets - the need for a middle ground" (2011) 28 Environmental and Planning Law Journal 201: VIII, I

Bonyhady, Tim, "Putting the environment first?" (2012) 29 Environmental and Planning Law Journal 316: XIII

Bell, Justine and Christensen, Sharon, "Use of property rights registers for sustainability: a Queensland case study" (2009) 17 Australian Propertt; Law Journal 86: SD

Boreham, Kevin and Brazil, Patrick, "The liability of company officers for corporate breaches of the new Federal environment legislation" (2000) 19 Australian Mining and Petroleum Law Journal 145: XIV

Bell, Justine; Saunders, Megan I; Lovelock, Catherine E and Possingham, Hugh P, "Legal frameworks for unique ecosystems - how can the EPBC Act offsets policy address the impact of development on seagrass?" (2014) 31 Environmental and Planning Law Journal 34: I, IX, SD

Bosselmann, Klaus, "Rio+ 10: any closer to sustainable development?" (2002) New Zealand Journal of Environmental Law 297: CC Boutler, Sandra, "Fire and the law" (2002) 19 Environmental and Planning Law Journal 303: SD

Bennett, Michael; Gardner, Alex, "How do environmental conservation laws interact with environmental aspects of water laws?" (2014) 31 Environmental and Planning Law Journal 3: XIII, IX, SD

Bowman, Megan, "The role of the banking industry in facilitating climate change mitigation and the transition to a low-carbon global economy" (2010) 27 Environmental and Planning Law Journal 448: CC, XIV

Benson, Nathan J, "What to do about useful nuisances? Antrim Truck Centre and its implications for toxic torts" (2012) 20 Tort Law Review 107: XIII

Boyd, Jordan, "The Whangarnata Marina decision and ministerial decisionmaking under the RMA" (2007) New Zealand Journal of Environmental Law 297: IX

lxxx

lxxxi

Australian Environmental Law

Boyd, Jordan and Iorns, Catherine, "Abolish the 'veto'?" (2008) New Zealand Law Journal 309: VI Bradbrook, Adrian, "Green power schemes: the need for a legislative base" (2002) 26 Melbourne UniversihJ Law Review 15: SD

Bradbrook, Adrian J, "Solar access law: 30 years on" (2010) 27 Environmental and Planning Law Journal Xill, RE Bradbrook, Adrian J, "Energy efficiency in road transport after the WSSD: an evolving area of environmental law" (2003) 20 Environmental and Planning Law Journal 16: II Bradbrook, Adrian J, "The development of a regulatory framework on consumer protection and consumer information for sustainable energy use" (2000) 5 Asia Pacific Journal of Environmental Law 239: XIV Bradbrook, Adrian J and Wawryk, Alexandra S, "Government initiatives promoting renewable energy for electricity generation in Australia" (2002) 25 UniversihJ of New South Wales Law Journal 124: SD, RE Bradbrook, Adrian J and Wawryk, Alexandra S, "The legal regime governing the exploitation of offshore wind energy in Australia" (2001) 18 Environmental and Planning Law Journal 30: SD Bradshaw, SD; Gardner, A and McDonald, L, "Legal protection of fauna habitat in Western Australia" (2003) 20 Environmental and Planning Law Journal 95: VIII Bredhauer, Jacqueline, "Can't see the scrub for the trees" (2004) 21 Environmental and Planning Law Journal 44: VIII, SD Bredhauer, Jacqueline, "Tree clearing in Western Queensland: a cost benefit analysis of carbon sequestration" (2000) 17 Environmental and Planning Law Journal 383: CT, XI, SD Brennan, Sean, "Native title and the "acquisition of property" under the Australian Constitution" (2004) 28 Melbourne University Law Review 28: X, XI Brereton, David, "Self-regulation of environmental and social performance in the Australian mining industry" (2003) 20 Environmental and Planning Law Journal 261: XIV, SD Brereton, DJ; Corder, GD and Davis, M, "The impact of Queensland's regulatory waste management framework on the uptake of regional synergies" (2009) 26 Environmental and Planning Law Journal 49: IV Brown, A L and Nitz, Tracey, "Where have all the EIAs gone?" (2000) 17 Environmental and Planning Law Journal 89: I, SD Brown, Claire; Farrier, David and Whelan, Rob, "Addressing scientific uncertainty in local government decision-making processes" (2002) 19 Environmental and Planning Law Journal 429: I Brown, J, "Beyond public native forest logging: National Forest Policy and Regional Forest Agreements after South East Queensland" (2001) 18 Environmental and Planning Law Journal 71: I, Vill, SD Brown, Simon, "Water resource management and the development approval process" (2003) 22 Australian Resources and Energy Law Journal 496: V Brunette, Barry, "Freshwater management and allocation under the Resource Management Act 1991: does first-in first-served achieve sustainable management principles?" (2006) New Zealand Journal of Environmental Law 169: V, XI lxxxii

Selected Bibliography of Periodical Literature

Bubna-Litic, Karen, "Climate change and corporate social responsibility: the intersection of corporate and environmental law" (2007) 24 Environmental and Planning Law Journal 253: CC, XIV Bubna-Litic, Karen, "Environmental Reporting as a Communications Tool: A Question of Enforcement?" (2008) 20 Journal of Environmental Law 69: I Bubna-Litic, Karen and Lloyd-Smith, Mariann, "The role of public participation in the disposal of HCBs: an Australian case study" (2004) 21 Environmental and Planning Law Journal 264: XIV Bubna-Litic, Karen and Williamson, Imelda, "The thin green line: embedded? 2002 annual environmental reporting under s 299(1)(£) of the Corporations Law" (2004) 21 Environmental and Planning Law Journal 466: XIV Buckett, Katie, "The raw prawn: regulation of prawn farming in Queensland: are the principles of ESD being achieved?" (2002) 19 Environmental and Planning Law Journal 131: SD Bullen, Emma, "Legislative limits on environmental decision-making: the application of the administrative law doctrines of jurisdictional fact and ultra vires" (2006) 23 Environmental and Planning Law Journal 265: Xill Burchmore, Jenny, "The development of new water legislation for NSW: a policy perspective" (2000) 17 Environmental and Planning Law Journal 309: V Burgman, Mark A, et al, "Designing regulation for conservation and biosecurity" (2009) 13 Australasian Journal of Natural Resources Law and Policy 93: VIII Burrell, Robert and Lee, Maria, "Liability for the escape of GM seeds: pursuing the victim?" (2002) 65 Modern Law Review 517: Xill, I, SD Buth, Rhain, "Theoretically sustainable risks" (2007) 10 Flinders Journal of Law Reform 451: SD Butt, Peter, "Conveyancing and property: natural rights and land" (2000) 74 Australian Law Journal 571: I Butt, Peter, "Rescission for aircraft noise" (2000) 74 Australian Law Journal 16: ill, TP Butt, Peter, "Conveyancing and property" (2004) 78 Australian Law Journal 560: I, TP Cabarrus, Jason, "Merits review of Commonwealth environmental decision- 'f.. making" (2009) 26 Environmental and Planning Law Journal 113: XVIII Campbell-Watt, Rob and Thompson, Andrew G, "Australia and an emissions trading market: opportunities, costs and legal frameworks" (2005) 24 Australian Resources and EnergtJ Law Journal 151: CT Caripis, Lisa; Kallies, Anne, '"Planning away' Victoria's renewable energy future? Resolving the tension between the local and global in windfarm developments" (2012) 29 Environmental and Planning Law Journal 415: I, SD, RE Cadman, Inga, "The Resource Management Act 1991 through external eyes" (2007) New Zealand Journal of Environmental Law 181: XI Carmody, Emma "The silence of the plan: Will the Convention on Biological Diversity and the Ramsar Convention be implemented in the Murray-Darling Basin?" (2013) 30 Environmental and Planning Law Journal I, VIII Carney, Gerard, "Constitutional framework for regulation of the Australian uranium industry" (2007) 26 Australian Resources and Energy Law Journal 235: I lxxxiii

Australian Environmental Law

Selected Bibliography of Periodical Literature

Carr, Yvette, "The international legal issues relating to the facilitation of sub-seabed CO2 sequestration projects in Australia" (2007) Australian International Law Journal 137: XIV

Churches, Steven C, "Courts and Parliament dysfunctional in review: forest management as a case study of bureaucratic power" (2000) 7 Australian Journal of Administrative Law 141: I, VIII

Carruthers, Penny; Mascher, Sharon, "The story of water management in Australia: Balancing public and private property rights to achieve a sustainable future" (2011) 1 Prop L Rev 97: V, IX

Cocklin, Chris; Gibbs, David and Hain, Monique, "Regulating biosciences: the Gene Technology Act 2000" (2002) 19 Environmental and Planning Law Journal 163: I, VIII, SD Cocklin, Chris and Hain, Monique, "The effectiveness of the courts in achieving the goals of environment protection legislation" (2001) 18 Environmental and Planning Law Journal 319: XIV

Casey, Kelly, "Good faith in environmental alternative dispute resolution: When 'any road' won't do" (2007) 24 Environmental and Planning Law Journal 346: XIII Cassirnatis, Anthony E; Billings, Peter, "Statutory judicial review in Australia: A comparative analysis of the Australian Capital Territory, Queensland and Tasmanian schemes" (2013) 23 JJA 73: XVIII, XIII, XV Cavanagh, Jo-Anne E, "Comparison of the environmental regulation of land management in the Sugar Industry Act 1991 (Qld), the Sugar Industry Bill 1999 and the Integrated Planning Act 1997 (Qld)" (2000) 17 Environmental and Planning Law Journal 118: SD Chan, Sophie, "Eligible carbon claims in the voluntary carbon market" (2011) 28 Environmental and Planning Law Journal 9: CT Chapman, Ralph, "A policy mix for environmentally sustainable development: learning from the Dutch experience" (2003) New Zealand Journal of Environmental Law 29: SD Chapman, Tamzyn, "The role, use of and requirement for traditional ecological knowledge in bioprospecting and biobanking biodiversity conservation schemes" (2008) 25 Environmental and Planning Law Journal 196: I, IX, VIII Chiam, Louis, "Abatements and offsets: legal issues in reducing emissions and developing offset projects" (2008) 27 Australian Resources and Energy Law Journal 105: II, CT, XIII, I Chin, Geraldine, "The role of public participation in the genetically modified organisms debate" (2000) 17 Environmental and Planning Law Journal 519: I, VIII, SD Christensen, Sharon; Durrant, Nicola; O'Connor, Pamela; Phillips, Angela, "Regulating greenhouse gas emissions from coal mining activities in the context of climate change" (2011) 28 Environmental and Planning Law Journal 381: XI, CC, SD Christie, Anna, "Can s 52 of the Trade Practices Act 1974 (Cth) be invoked against misleading statements by a proponent of a project in an environmental impact statement under Pts IV or V of the Environmental Planning and Assessment Act 1979 (NSW)?" (2006) 23 Environmental and Planning Law Journal 288: XIII, I Christie, Edward, "Finding a sustainable outcome for the Murray-Darling Basin Plan: An alternative pathway for resolving State water rights and extraction of water" (2011) 31 Qld Lawyer 82: V, VI

Code, Geoffrey, "The Planning and Environment (Restrictive Covenants) Act 2000 (Vic): another setback for public planning?" (2001) 18 Environmental and Planning Law Journal 211: TP Coffey, Felicity C, "Assessment of water resource plans under the Water Act 2000 (Qld): ecological outcomes and environmental flow objectives in the context of the precautionary principle and sustainable management" (2001) 18 Environmental and Planning Law Journal 410: V Cole, David, "Creative sentencing - Using the sentencing provisions of the South Australian Environment Protection Act to greater community benefit" (2008) 25 Environmental and Planning Law Journal 94: XV, XVI Collins, Anthony and Palmer, Sally, "The role of financial markets in emissions trading" (2008) 27 Australian Resources and Energy Law Journal 41: II, CT, XIII, I Collins, Lynda M, "Tort, democracy and environmental governance: the case of non-enforcement" (2007) 15 Tort Law Review 107: XIV, XIII Collins, Lynda; McLeod-Kilmurray, Heather, "Toxic battery: A tort for our time?" (2008) 16 Tort Law Review 131: XIII Connell, Daniel, "Section 100: a barrier to environmental reform?" (2003) 8

Australasian Journal of Natural Resources Law and Policy 83: V Connell, Daniel; Dovers, Stephen and Grafton, R Quentin, "A critical analysis of the national water initiative" (2005) 10 Australasian Journal of Natural Resources Law and Policy 81: V Connolly, Isabelle, "Can the World Heritage Convention be adequately implemented in Australia without Australia becoming a party to the Intangible Heritage Convention?" (2007) 24 Environmental and Planning Law Journal 198: X Connolly, Isabelle and Fallding, Martin, "Biocertification of local environmental plans: promise and reality" (2009) 26 Environmental and Planning Law Journal 128: I Connolly, Rebecca, "Is there a need for a commission on environmental cooperation for managing AUSFTA?" (2005) 22 Environmental and Planning Law Journal 409: XIV

Christoff, Peter, "Aiming high: on Australia's emissions reduction targets" (2008) 14 University of New South Wales Law Journal forum 19: II, CT, I

Coonan, Eric and Dewit, Elisa, "Corporate reporting of greenhouse gas emissions: is it voluntary or mandatory?" (2008) 27 Australian Resources and Energy Law Journal 72: II, CT, XIV, XIII, I

Chung, Vivian, "Making waves: an overhaul of Western Australia's legislative framework for the allocation of water" (2007) 26 Australian Resources and Energy Law Journal 161: V

Cordes-Holland, Owen, "Climate change, light-duty motor vehicles and the Stern review: environmental law and policy measures to reduce passenger vehicle CO2 emissions" (2007) 24 Environmental and Planning Law Journal 382: II, CC

Chung, Vivian; Gardner, Alex and Hatton MacDonald, Darla, "Pricing water for environmental externalities in Western Australia" (2006) 23 Environmental and Planning Law Journal 309: V

Cordes-Holland, Owen, "The sinking of the Strait: the implications of climate change for Torres Strait Islanders' human rights protected by the ICCPR" (2008) 9 Melbourne Journal of International Law 405: CC, IS

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Australian Environmental Law

Cordonnery, Laurence, "A note on the 2000 Convention for the Conservation and Management of Tuna in the Western and Central Pacific Ocean" (2002) 33 Ocean Development and International Law 1: VI, IX, SD Cork, Stuart, "Liquidators, lenders and contaminated land in New South Wales" (2005) 13 Insolvency Law Journal 33: VII Corkill, John, "Making Australia a green and pleasant land" (2003) 28 Alternative Law Journal 160: I Cotterill, Graeme and Ferraris, Cathryn, "Changes to Western Australia's duty laws affecting the resources industry" (2008) 27 Australian Resources and Energy Law Journal 447: XI Coxhead, Craig and Mikaere, Ani, "Treaty of Waitangi and Maori land law" (2002) New Zealand Law Review 415: XI Crabb, Rick W, "A new uranium project in a developing country: legal regime for environmental protection in Malawi" (2007) 26 Australian Resources and Energy Law Journal 304: I, VIII, SD, VII Craig, Donna, "Native title and environmental planning: indigenous land use agreements" (2000) 17 Environmental and Planning Law Journal 440: X, I Crawshaw, Bill, "Uranium royalties in Australia" (2007) 26 Australian Resources and Energi; Law Journal 325: I, VIII, SD, VII Cronin, Brian, "Lookout for the DCP: an analysis of the North Stradbroke Island Case" (2002) 8 Queensland Environmental Practice Reporter 178: XIV, SD Cunningham, Robert, "The ABC of GMOs, SPS and the WTO: an analysis of the application of the Agreement on Sanitary and Phytosanitary Measures within the context of biotechnology and international trade" (2005) Southern Cross UniversihJ Law Review 19: I, VIII, SD Curnow, Paul, "Designing optimal environmental policy for SMEs: the new Australian ozone and synthetic greenhouse gas framework and its application to the refrigeration and air conditioning industry" (2004) 21 Environmental and Planning Law Journal 391: CC Curnow, Paul and Fitz-Gerald, Louisa, "Biobanking in New South Wales: legal issues in the design and implementation of a biodiversity offsets and banking scheme" (2006) 23 Environmental and Planning Law Journal 298: CT, I Curran, Donna, "The conservation of biological diversity on private property in NSW" (2000) 17 Environmental and Planning Law Journal 34: I, VIII Curran, Stephanie E, "Sustainable development v sustainable management: the interface between the Local Government Act and the Resource Management Act" (2004) New Zealand Journal of Environmental Law 267: I, SD, TP Curran, Stephanie E, "The preservation of the intrinsic: ecosystem valuation in New Zealand" (2005) New Zealand Journal of Environmental Law 51: I, VIII Cuskelly, Katrina, "Legal frameworks for regulating biosequestration in Australia" (2011) 28 Environmental and Planning Law Journal 348: XIII

Selected Bibliography of Periodical Literature

Danne, Alexander P, "Voluntary environmental agreements in Australia: an analysis of statutory and non-statutory frameworks for the implementation of voluntary environmental agreements in Australia" (2003) 20 Environmental and Planning Law Journal 287: XIV, I Darbas, Toni, et al, "Co-regulation and cotton: governance of natural resource management in the Australian cotton industry" (2008) 12 Australasian Journal of Natural Resources Law and Policy 87: VIII Davidson, Asher, "Reverse sensitivity: are no-complaints instruments a solution?" (2003) New Zealand Journal of Environmental Law 203: I Davies, Martin, "Punitive damages and the Exxon Valdez" (2009) 83 Australian Law Journal 23: XIV Davies, Peter J; Ives, Christopher D; Findlay, Sophia J; Taylor, Mark P, "Urban rivers and riparian systems - directions and recommendations for legislators, policy makers, developers and community users" (2011) 28 Environmental and Planning Law Journal 313: V Davis, Ruth, "Taking on Japanese whalers: the Humane Society International litigation" (2005) 24 University of Tasmania Law Review 78: IX Dawson, Freya, "Conservation and sustainable land management in the rangelands: a critical examination of the Pastoral Land Act 1992 (NT)" (2004) 9 Australasian Journal of Natural Resources Law and Policy 153: VIII Dawson, Freya, "Analysing the goals of biodiversity conservation: scientific, policy and legal perspectives" (2004) 21 Environmental and Planning Law Journal 6: VIII Daya-Winterbottom, Trevor, "RMA deja vu: reviewing the Resource Management Act 1991" (2004) New Zealand Journal of Environmental Law 209: XI Daya-Winterbottom, Trevor, "Primus inter pares: major projects under the RMA" (2004) New Zealand Law Journal 416: XI de Hosson, Rachael, "The limits of merits review and the EPBC Act: Grey nurse sharks, fisheries and the AAT" (2010) 27 Environmental and Planning Law Journal 223: IX de Wit, Elisa; Webb, Rachael, "Planning for coastal climate change in Victoria" (2010) 27 Environmental and Planning Law Journal 23: CC Deakin, Claire, "Resolving the regulatory conflict: lessons for Australia from the European experience of regulating the release of genetically modified organisms into the environment" (2008) 25 Environmental and Planning Law Journal 22: XIII, I, SD Deane, Felicity, "A new legal avenue for pricing GHG emissions? To trade or to tax?" (2011) 28 Environmental and Planning Law Journal 111: CT Deegan, Craig and Ji, Sophia, "Finding information about contaminated sites in Australia: there has to be a better way!" (2008) 25 Environmental and Planning Law Journal 284: VII, TP, I

Cussen, Ken, "Handle with Care: Assessing the Risks of the Precautionary Principle" (2009) 16 Australasian Journal of Environmental Management 66: I

Denisenko, Georgia; Rooney, Sean and Rush, Peter, "Pro forma Native Title Agreements in Victoria gets things moving" (2004) 23 Australian Resources and Energy Law Journal 81: XI

Dalton, David, "Transgenic crops and genetic contamination: assessing the need for a regulatory response to protect organic farmers" (2003) 8 Australasian Journal of Natural Resources Law and Policy 129: VIII

Dennis, Graeme, "Contracts and clauses for carbon trading and carbon risk management" (2008) 27 Australian Resources and Energi; Law Journal 121: II, CT, XIV, XIII, I

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Selected Bibliography of Periodical Literature

Australian Environmental Law

Devine, Carleen, "How to use ADR in planning and development disputes" (2000) 38 Law Society Journal 55: TP Dillon, Roland, "Dreaming of a green Christmas" (2008) 82 Law Institute Journal 86: I

Edgar, Andrew, "Between rules and discretion: Legislative principles and the 'relevant considerations' ground of review" (2013) 20 Australian Journal of Administrative Law 132: XV, XIII

Djalal, Hasjim, "The emergence of the concept of fishing entities: a note" (2006) 37 Ocean Development and International Law 117: VI, IX, SD

Edgeworth, Brendan, "Planning law v property law: overriding statutes and the Torrens system after Hillpalm v Heaven's Door and Kogarah v Golden Paradise" (2008) 25 Environmental and Planning Law Journal 82: TP

Drummond, Lucie, "Managing the environmental effects of agriculture under the Resource Management Act: non-point source discharges" (2006) New Zealand Journal of Environmental Law 255: XI

Edwards, Martin, "Interactions between petroleum operations and carbon capture and storage operations in Australian offshore waters" (2009) 26 Environmental and Planning Law Journal 152: I, XI

Durette, Melanie, "A comparative approach to Indigenous legal rights to freshwater: Key lessons for Australia from the United States, Canada and New Zealand" (2010) 27 Environmental and Planning Law Journal 296: IS

Ellis, Bill, "Integration of natural resources management under Queensland mining legislation" (2003) 20 Environmental and Planning Law Journal 66: XI, SD

Durie, Anne; Horn, Laura, "Sustainability reporting: The role of financial institutions" (2009) 37 Australian Business Law Review 342: SD Durrant, Nicola, "Legal issues in biosequestration: carbon sinks, carbon rights and carbon trading" (2008) 14 University of New South Wales Law Journal forum 47: II, CT, I, XI, IV, SD Durrant, Nicola, "Tortious liability for greenhouse gas emissions? Climate change, causation and public policy considerations" (2007) 7 Queensland University of Technology Law and Justice Journal 403: CC Durrant, Nicola, "Emissions trading, offsets and other mitigation options for the Australian coal industry" (2007) 24 Environmental and Planning Law Journal 361: CT Dwyer, Guy J and Taylor, Mark P, "Moving from consideration to application: The uptake of principles of ecologically sustainable development in environmental decision-making in New South Wales" (2013) 30 Environmental and Planning Law Journal 185: SD Dyson, Megan and Scanlon, John, "Will practice hinder principle?: Implementing the EPBC Act" (2001) 18 Environmental and Planning Law Journal 14: XIII, I Early, Gerard, "Current status of implementation of the Environment Protection · and Biodiversity Conservation Act 1999" (2002) 8 Queensland Environmental Practice Reporter 57: VIII

Ellis-Jones, Ian, "Retrospective approvals, consents and certificates in New South Wales" (2008) 25 Environmental and Planning Law Journal 449: I Ellis-Jones, Ian, "Jurisdictional error: An alternative approach" (2008) 14 LGLJ 109:

xv Endres, Anthony M, "Market competition and potential amenity detriment" (2005) New Zealand Law Journal 450: XI England, Philippa, "Doing the groundwork: state, local and judicial contributions to climate change law in Australia" (2008) 25 Environmental and Planning Law Journal 360: I, TP England, Philippa, "The South east regional plan: a landmark in the demise of the 'Developmental' state? (or Nirnby comes to Brisbane)" (2007) 11 Australasian Journal of Natural Resources Law and Policy 119: SD, TP England, Philippa, "IPA planning schemes: is there a difference?" (2006) 23 Environmental and Planning Law Journal 81: I England, Philippa, "Judicial interpretation of planning schemes under the Integrated Planning Act 1997 (Qld): the more things change" (2005) 22 Environmental and Planning Law Journal 281: I, XIII England, Philippa, "Too much too soon? On the rise and fall of Australia's coastal climate change law" (2013) 30 Environmental and Planning Law Journal 390: CC

Eburn, Michael and Jackman, Bronwen, "Mainstreaming fire and emergency management into law" (2011) 28 Environmental and Planning Law Journal 59:

England, Philippa, "From revolution to evolution: Two decades of planning in Queensland" (2010) 27 Environmental and Planning Law Journal 53: I

Edeson, William, "Some future directions for fishing entities in certain regional fisheries management bodies" (2006) 37 Ocean Development and International Law 245: VI, IX, SD

England, Philippa, "Heating up: Climate change law and the evolving responsibilities of local government" (2008) 13 LGLJ 209: CC, TP

Edeson, William R, "Law of the Sea Convention: confusion over the use of 'UNCLOS' and references to other recent agreements" (2000) 15 International Journal of Marine and Coastal Law 413: VI, IX, SD Edgar, Andrew, "Policy, morality and the Land and Environment Court" (2006) 14 Australian Journal of Administrative Law 38: I

Englefield, Graham, "Water Management Act 2000: the new legal framework for buyers and lenders" (2004) 18 Commercial Law Quarterly 19: V Ewing, Kellie, "Conservation covenants and community conservation groups: improving the protection of private land" (2008) New Zealand Journal of Environmental Law 315: VIII

Edgar, Andrew, "Standard deviation? The problematic pre-condition to SEPP l" (2002) 19 Environmental and Planning Law Journal 226: I

Fahey, James and McLaren, James, "Key legal and regulatory considerations for the geosequestration of carbon dioxide in Australia" (2005) 24 Australian Resources and Energy Law Journal 45: CT, CC, SD

Edgar, Andrew, "Participation and responsiveness in merits review of polycentric decisions: A comparison of development assessment appeals" (2010) 27 Environmental and Planning Law Journal 36: XVIII

Fahey, James and Pu, Richard, "Regulation of the uranium industry in Australia: a comparison to the Canadian approach and the need for a single federal regulator" (2007) 26 Australian Resources and Energy Law Journal 268: I, VIII, SD, VII

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Selected Bibliography of Periodical Literature

Australian Environmental Law

31

Fisher, D E, "Markets, water rights and sustainable development" (2006) 23 Environmental and Planning Law Journal 100: X, V

Fallon, Liza D and Kriwoken, Lorene K, "International influence of an Australian Nongovernrnent organization in the protection of Patagonian Toothfish" (2004) 35 Ocean Development and International Law 221: VI, IX, SD

Fisher, D E, "Sustainability: the principle, its implementation and its enforcement" (2001) 18 Environmental and Planning Law Journal 361: SD

Fallding, Martin "Biodiversity offsets: Practice and promise" Environmental and Planning Law Journal 11: CT, XIII

(2014)

Fanning, Shelly, "Challenges for desalination in Australia" (2008) 13 LGLJ 192: I, V Farrier, David, "Fragmented law in fragmented landscapes: the slow evolution of integrated natural resource management legislation in NSW" (2002) 19 Environmental and Planning Law Journal 89: I Farrier, David; Kelly, Andrew and Langdon, Angela, "Biodiversity offsets and native vegetation clearance in New South Wales: the rural/urban divide in the pursuit of ecologically sustainable development" (2007) 24 Environmental and Planning Law Journal 427: I, SD Farrier, David, et al, "A state is not an island: conserving evolutionary potential in the face of climate change by listing populations under current threatened species legislation" (2009) 13 Australasian Journal of Natural Resources Law and Policy 137:

Fisher, Elizabeth; Paterson, Chris and Gullett, Warwick, "Substantive precautionary decision-making: the Australian Fisheries Management Authority's 'lawful pursuit' of the precautionary principle" (2001) 7 Australasian Journal of Natural Resources Law and Policy 95: SD Fisher, Richard M, "Wind energy in New Zealand: regulatory and policy lessons to date" (2005) New Zealand Journal of Environmental Law 307: SD Fisher, Richard M, "New Zealand makes controversial changes to the purpose of local government" (2013) 18 LGLJ 69: IV, I Fitz-Gerald, Louisa and Wilder, Martijn, "Overview of policy and regulatory emissions trading frameworks in Australia" (2008) 27 Australian Resources and Energy Law Journal l: CT, CC

VIII

Fitz-Gerald, Louisa and Wilder, Martijn, "Carbon markets and policy in Australia: recent developments" (2008) 31 University of New South Wales Law Journal 838: CT,

Field, Grace; Bums, Georgette Leah; Dale, Pat, "Managing vegetation clearing in the South East Queensland urban footprint" (2012) 17 LGLJ 215: SD

cc

Finn, Douglas P, "Nuclear waste management of activities in the Pacific Basin and regional co-operation on the nuclear fuel cycle" (1983) 13 Ocean Development and International Law 213: IV

Fitzsimons, James and Westcott, Geoff, "Policy implications of the transfer of ownership of Scotia Sanctuary for the National Reserve System in Australia" (2002) 19 Environmental and Planning Law Journal 329: X

Fisher, D E, "Considerations, principles and objectives in environmental management in Australia" (2000) 17 Environmental and Planning Law Journal 487: I

Fitzsimons, James A, "Private protected areas? Assessing the suitability for incorporating conservation agreements over private land into the National Reserve System: a case study of Victoria" (2006) 23 Environmental and Planning Law Journal 365: I Foerster, Anita, "Managing and protecting environmental water: lessons from the Gwydir for ecologically sustainable water management in the Murray Darling Basin" (2008) 25 Environmental and Planning Law Journal 49: V

Fisher, D E, "Water law, the High Court and techniques of judicial reasoning" (2010) 27 Environmental and Planning Law Journal 85: V, VI, IX

Foerster, Anita, "Victoria's new environmental water reserve: what's in a name?" (2007) 11 Australasian Journal of Natural Resources Law and Policy 145: V

Fisher, DE, "The statutory relevance of greenhouse gas emissions in environmental regulation" (2007) 24 Environmental and Planning Law Journal 210: CT, I

Foerster, Anita; Macintosh, Andrew and McDonald, Jan, "Transferable lessons for climate change adaptation planning? Managing bushfire and coastal climate hazards in Australia" (2013) 30 Environmental and Planning Law Journal 469: CC, SD

Finn, Jeremy, "The legal environment of Salmond's time" (2008) 38 Victoria University of Wellington Law Review 689: XIII Fisher, D E, "Environmental impact assessment in Queensland" (2001) 18 Environmental and Planning Law Journal 109: I, SD

Fisher, D E, "The meaning of impacts: the Nathan Darn case on appeal" (2004) 21 Environmental and Planning Law Journal 325: XIII Fisher, D E, "Darns, irrigation and world heritage areas: the Nathan Dam case" (2004) 21 Environmental and Planning Law Journal 85: V Fisher, D E, "The response of the United States Supreme Court to global warming: injury in fact or conjecture" (2007) 24 Environmental and Planning Law Journal 241:

cc Fisher, D E, "Water resources governance and the law" (2006) 11 Australasian Journal of Natural Resources Law and Policy l: V Fisher, D E, "Can the law protect landscape values?" (2005) New Zealand Journal of Environmental Law l: X Fisher, D E, "Rights of property in water: confusion or clarity" (2004) 21 Environmental and Planning Law Journal 200: V XC

Foley, Tony, "Negotiating resource agreements: lessons from ILUAs" (2002) 19 Environmental and Planning Law Journal 267: XI Follett, Emily, "Sinking islands, shrinking maritime entitlements: Is a new rule of international law needed to protect and promote offshore minerals exploration and mining?" (2012) 29 Environmental and Planning Law Journal 75: IX Forrest, Craig, "Australia's protection of foreign states' cultural heritage" (2004) 27 Universih; of New South Wales Law Journal 605: X Forrest, Craig, "Strengthening the international regime for the prevention of the illicit trade in cultural heritage" (2003) 4 Melbourne Journal of International Law 592: X

Forrest, Craig," An international perspective on sunken state vessels as underwater cultural heritage" (2003) 34 Ocean Development and International Law 41: CC xci

Selected Bibliography of Periodical Literature

Australian Environmental Law

Forrest, Craig and Gaskell, Nicholas, "Marine pollution damage in Australia: implementing the Bunker Oil Convention 2001 and the Supplementary Fund Protocol 2003" (2008) 27 University of Queensland Law Journal 103: XIV, IX

Gardner, Alex, "Appeals against administrative decisions affecting water resources" (2000) 17 Environmental and Planning Law Journal 341: I, V Gardner, Alex and Gray, Janice, "Legal access to sewage and the 'reinvention' of wastewater" (2008) 12 Australasian Journal of Natural Resources Law and Policy 115:

Foster, Angela, "New Zealand's oceans policy" (2003) 34 Victoria UniversihJ of Wellington Law Review 469: VI, IX

IV

Fox, Sharon; Katscherian, Dianne and Morrison-Saunders, Angus , "Biotechnology risk assessment in Australia: a molecular perspective" (2006) 23 Environmental and Planning Law Journal 236: I, VIII, SD

Gardner, Alex and Jenkins, Michelle, "Conservation of biodiversity through the listing of threatened species and ecological communities: a comparative review" (2005) 10 Australasian Journal of Natural Resources Law and Policy 1: VIII

Fraser, Laura, "Property rights in environmental management: the nature of resource consents in the Resource Management Act 1991" (2008) New Zealand Journal of Environmental Law 145: I

Gardner, Alex and Roberts, Andrew, "Challenges for the management of water resources in Western Australia: a legal response to findings of the public sector performance report, 2003" (2005) 22 Environmental and Planning Law Journal 40: V

Frederick, Paul, "What's new about water rights?" (2002) 40 Law Society Journal 50: V

Gardner, Katherine, "Working party recommendations for planning appeals" (2001) 39 Law Society Journal 42: TP

Frederick, Paul and Procajlo, Mark, "Conveyancing water access licences: checklists for vendor and purchaser solicitors" (2005) 43 Law Society Journal 50: V

Gardner, Katherine, "Climate change - regulatory and judicial developments: Catalysts for corporate social responsibility reform?" (2008) 14 LGLJ 197: CC, XV,

Freeland, Steven, "The Kyoto Protocol: an agreement without a future?" (2001) 7 University of New South Wales Law Journal forum 2: CC

XIll Gau, Michael Sheng-ti, "The practice of the concept of fishing entities: dispute settlement mechanisms" (2006) 37 Ocean Development and International Law 221: VI, IX, SD

French, Emma, '"Greenbacks' versus green credits: Has the Carbon Farming Initiative got the balance right?" (2013) 30 Environmental and Planning Law Journal 434: CT French, R S, "Compensation for marine pollution" (2008) 82 Australian Law Journal 527: XIV, XIII, VI Fricci, Paolo F and Gray, Natalie J, "Toxic torts and causation: towards an equitable solution in Australia law. Part 2: means-ends analysis" (1999) 22 University of New South Wales Law Journal 155: XIV, I, VII Fuiava, P F, "Can local government control land use involving genetically modified organisms?" (2004) New Zealand Journal of Environmental Law 295: I, TP

Gee, Dianne and Stratford, Elaine, "Public participation and integrated planning in the Tasmanian private timber reserve process" (2001) 18 Environmental and Planning Law Journal 54: I Geroe, Steven, "Exclusion of agriculture from the (prospective) CPRS - good policy or good politics? A discussion of legal and policy options in the context of current political developments" (2010) 27 Environmental and Planning Law Journal 202: XI, SD

Fuller, Peter, "The Resource Management Act 1991: 'an overall broad judgment'" (2003) New Zealand Journal of Environmental Law 243: XI

Gerrard, Emily, "Climate change and human rights: issues and opportunities for Indigenous peoples" (2008) 14 University of New South Wales Law Journal forum 67: CC, X, XIII

Gale, Robert and Gullett, Warwick, "Legislated environmental reporting requirements: compliance issues at the Great Barrier Reef Marine Park Authority" (2004) 9 Australasian Journal of Natural Resources Law and Policy 33: IX

Gerrard, Emily, "Victoria: Victorian native title settlement framework" (2009) 28 Australian Resources and Energy Law Journal 140: X, SS

Gallagher, John, "IPA: some developments" (2002) 8 Queensland Environmental Practice Reporter 174: TP

Gerus, Mark and Wood, David, "Warden's power to consider objections to grant of mining lease on public interest grounds: application to environmental issues" (1999) 18 Australian Mining and Petroleum Law Journal 214: I

Gardner, Alex, "Developments in the whole-of-government management of terrestrial water resources" (2000) 29 UniversihJ of Western Australia Law Review 116: V Gardner, Alex, "Environmental water allocations in Australia" (2006) 23 Environmental and Planning Law Journal 208: V Gardner, Alex, "The legal basis for the emerging value of water licences: property rights or tenuous permissions" (2003) 10 Australian Property Law Journal 1: V Gardner, Alex, "Law and policy for sustainable water quality management: focus on the Sydney water catchments" (2003) 8 Australasian Journal of Natural Resources Law and Policy 99: I Gardner, Alex, "Water resources law reform in Western Australia: implementing the CoAG water reforms" (2002) 19 Environmental and Planning Law Journal 6: V xcii

Ghanem, Robert; Ruddock, Kirsty and Walker, Josie, "Are our laws responding to the challenges posed to our coasts by climate change?" (2008) 14 UniversihJ of New South Wales Law Journal forum 40: I, IX Ghanem, Robert; Ruddock, Kirsty, "Are New South Wales' planning laws climate-change ready?" (2011) 28 Environmental and Planning Law Journal 17: CC, SD Gibbs, Meredith, "Greenhouse gas storage in offshore waters: balancing competing interests" (2009) 28 Australian Resources and Energy Law Journal 52 II, IX, SD Gibbs, Meredith, "The Ngai Tahu (Pounamu Vesting) Act 1997" (2000) New Zealand Journal of Environmental Law 257: I

xciii

Selected Bibliography of Periodical Literature

Australian Environmental Law

Gibson, Kathy, Hollingsworth, Carl and Marsden, Simon, "Tasmania's environmental improvement programs and the 'Brown Issues': environmental accountability or regulatory capture?" (2000) 17 Environmental and Planning Law Journal 24: XIII, I, IX, VIII

Goudkamp, James, "Securing access to sunlight: the role of planning law in New South Wales" (2004) 9 Australasian Journal of Natural Resources Law and Policy 59: I,

Gill, Jan, "The NSW Water Management Act 2000" (2001) 18 Environmental and Planning Law Journal 273: V

SD Graham, Kristy; Wright, Ian A, "The potential and reality of the environment protection licensing system in New South Wales: The case of water pollution" (2012) 29 Environmental and Planning Law Journal 359: VIII, IX, VI,!

Gillespie, Alexander, "Money questions: financial assistance under the ozone and climate regimes" (2003) 20 Environmental and Planning Law Journal 142: CC

Grant, Richard and Papadakis, Elim, "Transforming environmental governance in a 'laggard' state" (2004) 21 Environmental and Planning Law Journal 144: I, SD

Gillespie, Alexander, "Forum shopping in international environmental law: The IWC, CITES, and the Management of Cetaceans" (2002) 33 Ocean Development and International Law 17: VIII

Gray, Anthony, "Reinterpreting the trade and commerce power" (2008) 36 Australian Business Law Review 29: XIII

Glassborow, Kim and Parker, Grant, "The carbon pollution reduction scheme and its likely impact on developers" (2009) 47 Law Society Journal 56: CT, CC

I, TP

Glazebrook, Susan, "Human rights and the environment" (2009) 40 Victoria University of Wellington Law Review 293: X

An overwhelming success?" (2012) 29 Environmental and Planning Law Journal 328:

Glazewski, Jan and Haward, Marcus, "Towards integrated coastal area management: a case study in co-operative governance in South Africa and Australia" (2005) 20 International Journal of Marine and Coastal Law 65: I, IX

Gray, Kevin, "Can environmental regulation constitute a taking of property at common law?" (2007) 24 Environmental and Planning Law Journal 161: XIII

Glover, Peter A, "The strength of the Timor-Leste case and section 51 of the Constitution" (2005) 24 Australian Resources and Energy Law Journal 307: VI, XI Godden, Lee, "The bounding of vice: prostitution and planning law" (2001) 10 Griffith Law Review 77: TP Godden, Lee, "Indigenous heritage and the environment: 'Legal categories are only one way of imagining the real"' (2002) 19 Environmental and Planning Law Journal 258: X Godden, Lee and Kallies, Anne, "What price democracy? Blue Wedges and the hurdles to public interest environmental litigation" (2008) 33 Alternative Law Journal 194: XIII Godden, Lee; Nelson, Rebecca and Peel, Jacqueline, "GMO trade wars: the submissions in the EC: GMO dispute in the WTO" (2005) 6 Melbourne Journal of International Law 141: VIII Godden, Lee and Peel, Jacqueline, "Australian environmental management: a 'dams' story" (2005) 28 University of New South Wales Law Journal 668: XIII Godden, Lee and Peel, Jacqueline, "The Environment Protection and Biodiversity Conservation Act 1999 (Cth): dark sides of virtue" (2007) 31 Melbourne University Law Review 106: I, SD Goldfinch, Antony, "The classification of the functions and powers of the warden in Western Australia: a case of imagined and non-existent difficulties?" (2004) 23 Australian Resources and Energy Law Journal 48: XI Gordon, Kathryn, "Compete or cooperate?" (2009) 83 Law Institute Journal 86: XIV, SD Gore, Danny, "Recent developments in the environmental regime: environmental harm offences and defences" (2002) 8 Queensland Environmental Practice Reporter 188: XIV

xciv

Gray, Jordan, "An inconvenient judgment?" (2008) 82 Law Institute Journal 48: XII, Gray, Janice, "The legal framework for water trading in the Murray-Darling Basin:

V, VI

Gray, Stephen, "Native title: gill nets at Bul Gul" (2000) 25 Alternative Law Journal 245: V, IX Green, Julia Jabour, "Legal and political aspects of iron fertilisation in the Southern Ocean: implications of Australian involvement" (2002) 32 Environmental Policy and Law 217: VI, IX Gregorczuk, Helen, "Waste management in Queensland" (1996) 13 Environmental and Planning Law Journal 390: IV Grigg, Brendan, "Environmental civil penalties in Australia: Towards deterrence?" (2011) 28 Environmental and Planning Law Journal 36: XV, XVI Griggs, Lynden, "The new regime for water management in Tasmania" (2000) 19 University of Tasmania Law Review 159: I, V Grinlinton, David P, "Integrated environmental assessment in New Zealand" (2000) 17 Environmental and Planning Law Journal 176: I, SD Grover, Kristen, "A conceptual comparison between unitisation under Australian petroleum legislation and coordination under the Petroleum and Gas (Product and Safety) Act 2004 (Qld)" (2005) 24 Australian Resources and Energy Law Journal 331: XI Gullett, Warwick, "Enforcing bycatch reduction in trawl fisheries: legislating for the use of turtle exclusion devices" (2003) 20 Environmental and Planning Law Journal 195: VI, IX Gullett, Warwick, "Contesting the merits of aquaculture development: Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning (2005) NSWLEC 426" (2006) 11 Australasian Journal of Natural Resources Law and Policy 109: I, V

Gullett, Warwick, "Smooth sailing for Australia's automatic forfeiture of foreign fishing vessels" (2005) 22 Environmental and Planning Law Journal 169: VI, IX, SD Gullett, Warwick, "Relying on Fishy Advice: The Ostrowski Decision" (2004) 21 Environmental and Planning Law Journal 245: IX XCV

Australian Environmental Law

Cumley, Wayne, "The role of economic instruments in promoting sustainable land use" (2001) 7 Australasian Journal of Natural Resources Law and Policy 137: SD

Selected Bibliography of Periodical Literature

Havemann, Paul, et al., "Traditional use of marine resources agreements and dugong hunting in the Great Barrier Reef World Heritage Area" (2005) 22 Environmental and Planning Law Journal 258: IX

Gundersen, Bryan, "Analysis of the policy and regulatory framework of the New Zealand Emissions trading scheme: the Closer Economic Relations Treaty" (2008) 27 Australian Resources and Energy Law Journal 23: CC

Haydon, John, "A forward looking view of the Planning and Environment Court" (2002) 8 Queensland Environmental Practice feporter 19: XIII

Cunningham, Neil, "Cotton, health and environment: a case study of selfregulation" (2004) 9 Australasian Journal of Natural Resources Law and Policy 189: VIII

Hayes, Catherine, "Environmental law left stranded? The regulation of military sonar under the EPBC Act and lessons from the United States" (2010) 27 Environmental and Planning Law Journal 426: XIII

Cunningham, Neil, "Voluntary and negotiated agreements in agriculture: towards a partnership approach to resource management" (2003) 8 Australasian Journal of

Hayward, Andrew, "The Hazardous Substances and New Organisms Act, precaution, and the regulation of GMOs in New Zealand" (2005) New Zealand Journal of Environmental Law 123: XIII, I, SD

Natural Resources Law and Policy 1: XI Cunningham, Neil and Holley, Cameron, "Environment improvement plans: facilitative regulation in practice" (2006) 23 Environmental and Planning Law Journal 448: I, SD Cunningham, Neil; Holley, Cameron and Shearing, Clifford, "Neighbourhood environment improvement plans: community empowerment, voluntary collaboration and legislative design" (2007) 24 Environmental and Planning Law Journal 125: SD Cunningham, Neil and Sinclair, Darren, "Non-point pollution, voluntarism and policy failure: lessons for the Swan-Canning" (2004) 21 Environmental and Planning Law Journal 93: SD

Hayward, Andrew, "Freshwater management: water markets and novel pricing regimes" (2006) New Zealand Journal of Environmental Law 215: V Hayward, Brett, "Towards standalone Aboriginal heritage legislation in New South Wales: A critical analysis and proposals for an alternative plan" (2012) 29 Environmental and Planning Law Journal 515: IS Haywood, Caroline, "The European Union's Emissions trading scheme: international emissions trading lessons for the Copenhagen Protocol and implications for Australia?" (2009) 26 Environmental and Planning Law Journal 310: II, CT

Cunningham, Neil; Sinclair, Darren, "Water Efficiency Plans: Policy and practice" (2010) 27 Environmental and Planning Law Journal 331: I, V

Hemmings, Alan D, "Problems posed by attempts to apply a claimant's domestic legislation beyond its own nationals in Antarctica" (2008) 11 Asia Pacific Journal of Environmental Law 207: XIV

Haigh, David, "Australian world heritage, the Constitution and international law" (2005) 22 Environmental and Planning Law Journal 385: VIII

Hemmings, Alan D and Stephens, Tim, "Australia's extended continental shelf: what implications for Antarctica?" (2009) 20 Public Law Review 9: IX, XI

Haigh, David J, "World Heritage: principle and practice: a case for change" (2000) 17 Environmental and Planning Law Journal 199: VIII

Henckels, Caroline, "GMOs in the WTO: a critique of the panel's legal reasoning in EC-Biotech" (2006) 7 Melbourne Journal of International Law 278: I, VIII, SD

Hamilton, Mark, "Restorative justice intervention in an environmental law context: Garrett v Williams, prosecutions under the Resource Management Act 1991 (NZ), and beyond" (2008) 25 Environmental and Planning Law Journal 263: XIV

Hepburn, Samantha, "Carbon rights as new property: the benefits of statutory verification" (2009) 31 Sydney Law Review 239: CT, CC, SD

Harris, Jason; Hargovan, Anil; Austin, Janet, "Shareholder primacy revisited: Does the public interest have any role in statutory duties?" (2008) 26 Company and Securities Law Journal 355: XIV, XIII Hart, Keith, "Legal and policy responses to the problem of pest animal impacts on natural resources in NSW" (2002) 19 Environmental and Planning Law Journal 355: VIII

Herbert, Cameron, "Risk of future reduction in water availability from the consumptive pool: current issues and approaches in New South Wales" (2005) 22 Environmental and Planning Law Journal 431: V, SD Herzfeld, Perry, "Still a troublesome area: legislative and common law restrictions on indemnity and insurance arrangements effected by companies on behalf of officers and employees" (2009) 27 Company and Securities Law Journal 267: XIII

Hartley, Angela, "Are criminal penalties the most effective sanction for offences under Pt V of the Environmental Protection Act 1986 (WA)?" (2004) 21 Environmental and Planning Law Journal 312: XIV

Hewitt, Tara, "Implementation and enforcement of the Convention on International Trade in Endangered Species of Wild Fauna and Flora in the South Pacific region: management and scientific authorities" (2002) 2 Queensland University of Technology Law and Justice Journal 98: VIII

Hassan, Daud, "Regional frameworks for land based sources of marine pollution control: a legal analysis on the North East Atlantic and the Baltic Sea regions" (2004) 4 Queensland UniversihJ of Technology Law and Justice Journal 1: VI, IX, VIII,

Hickie, Scott, "Managing recreation, conservation and economy: a critical appraisal of the New South Wales Marine Parks Amendment Act 2008" (2009) 26 Environmental and Planning Law Journal 61: I, IX

VII Havemann, Paul, "Genetic modification, ecological good governance and the law: New Zealand in the age of risk" (2003) James Cook University Law Review 7: VIII xcvi

Hiley, Graham, "Pastoral and grazing leases and native title" (2002) 21 Australian

Mining and Petroleum Law Journal 268: X, VIII

xcvii

Australian Environmental Law

Hindmarsh, Richard and Lawson, Charles, "Releasing genetically modified canola into the environment: deconstructing a decision of the Gene Technology Regulator under the Gene Technology Act 2000 (Cth)" (2006) 23 Environmental and Planning Law Journal 22: XIII, I, SD Ho-Shon, Edward, "Integrated natural resources management in aquaculture: realities and possibilities" (2003) 20 Environmental and Planning Law Journal 223: IX, SD,V Holden, Geoff, "An accreditation process for irrigation corporation environmental responsibilities" (2000) 7 Australasian Journal of Natural Resources Law and Policy 71: XIV, I Holley, Cameron, "Public participation, environmental law and new governance: Lessons for designing inclusive and representative participatory processes" (2010) 27 Environmental and Planning Law Journal 360: I, SD Holley, Cameron, "Aging gracefully? Examining the conditions for sustaining successful collaboration in environmental law and governance" (2009) 26 Environmental and Planning Law Journal 457: I, XIII Holley, Cameron and Sinclair, Darren, "Deliberative participation, environmental law and collaborative governance: Insights from surface and groundwater studies" (2013) 30 Environmental and Planning Law Journal 32: V, VI, VIII, IX Holzberger, Melissa Kate, "Euratom's ability to intervene in uranium supply contracts between European Union nuclear utilities and Australian producers" (2006) 25 Australian Resources and Energy Law Journal 175: SD Hope, Janet, "A history of biotechnology regulation in New Zealand" (2002) New Zealand Journal of Environmental Law 1: VIII Hope, Janet, "Preserving opportunities or taking unjustified risks? Reflections on the Report of the New Zealand Royal Commission on Genetic Modification" (2003) 8 Australasian Journal of Natural Resources Law and Policy 29: VIII Horn, Laura, "Climate change litigation actions for future generations" (2008) 25 Environmental and Planning Law Journal 115: CC, XIV, XIII, SS Horn, Laura, "Mediation of environmental conflicts" (2005) 22 Environmental and Planning Law Journal 369: XIV Horn, Laura, "The Kyoto Protocol: Australia's commitment and compliance" (2001) 24 University of New South Wales Law Journal 583: CC Horn, Laura, "Globalisation, sustainable development and the common concern of humankind" (2007) Macquarie Law Journal 53: SD Horn, Laura, "Multinational enterprises and sustainable development" (2008) 21

Australian Journal of Corporate Law 186: SD

Selected Bibliography of Periodical Literature

Huggins, Anna, "Protecting world heritage sites from the adverse impacts of climate change: obligations for states parties to the World Heritage Convention" (2007) Australian International Law Journal 121: CC, VIII Huggins, Anna, "Is climate change litigation an effective strategy for promoting greater action to address climate change? What other legal mechanisms might be appropriate?" (2008) 13 LGLJ 184: CC, XV, XIII Hughes, Laura, "Environmental impact assessment in the Environment Protection and Biodiversity Act 1999 (Cth)" (1999) 16 Environmental and Planning Law Journal 441: I, SD Hutchings, Alan, "Strategic land use planning: experiments in legislation and governance" (2006) 23 Environmental and Planning Law Journal 426: SD Hutchins, Alan, "Perceived amenity: a view from South Australia" (2002) 19 Environmental and Planning Law Journal 325: TP Hymel, Mona L, "Globalisation, environmental justice, and development: the case of oil" (2007) Macquarie Law Journal 125: SD

sustainable

Irvine, Jessica, "A changing climate for urban design: an examination of the New Zealand regulatory approach" (2008) New Zealand Journal of Environmental Law 277: TP Ives, Christopher and Taylor, Mark Patrick, "Legislative and policy challenges for the protection of biodiversity and bushland habitats: an evidence-based approach" (2009) 26 Environmental and Planning Law Journal 35: VIII Ives, Christopher D; Taylor, Mark Patrick; Nipperess, David A and Davies, Peter, "New directions in urban biodiversity conservation: The role of science and its interaction with local environmental policy" (2010) 27 Environmental and Planning Law Journal 249: VIII, IX, I Ives, Christopher D; Taylor, Mark Patrick and Davies, Peter J, "A setback for river and riparian ecosystems: A response to the New South Wales Office of Water 2012 policy on riparian corridors" (2013) 30 Environmental and Planning Law Journal 122: V, VI, XVI Jackson, Henry, "Potential exposure to legal liabilities for the supply of recycled water and biosolids" (2005) 22 Environmental and Planning Law Journal 418: rv, XIV, V Jaireth, Hanna, "Managing invasive species - a global/local assessment" (2011) 16 LGLJ173: VIII,IX,XVII Jeffery, Michael, "Where do we go from here? Emissions trading under the Kyoto Protocol" (2001) 7 University of New South Wales Law Journal forum 26: CC Jeffery, Michael, "Environmental imperatives in a globalised world: the ecological impact of liberalising trade" (2007) Macquarie Law Journal 25: SD

Horowitz, Deborah, "Case Notes: Southern Bluefin Tuna case (Australia and New Zealand v Japan) Gurisdiction and Admissibility): the catch of Poseidon's trident: the fate of high seas fisheries in the Southern Bluefin Tuna case" (2001) 25 Melbourne University Law Review 810: VI, IX, SD

Jeffery, Michael I, "The legal framework for environmental regulation under the North American Free Trade Agreement" (1994) 11 Environmental and Planning Law Journal 382: I

Howard, Leigh, "Trading emissions for arbitration: Can an ETS give rise to liability under the laws of investment?" (2011) 28 Environmental and Planning Law Journal 243: CT, XIV

Jenkins, Bryan, "Comparison of two Commonwealth/State environmental management programmes in an evaluation framework" (2003) 8 Australasian Journal of Natural Resources Law and Policy 57: I

Howard, Tom, "Liability of directors for environmental crime: the anything-butlevel playing field in Australia" (2000) 17 Environmental and Planning Law Journal 250: XIV

Jenkins, Bryan, "Experience with environmental forensic science in Environmental Protection Act enforcement proceedings in WA" (2001) 18 Environmental and Planning Law Journal 469: I

xcviii

xcix

Australian Environmental Law

Jessup, Brad and Rothwell, Donald R., "The limits of the Great Barrier Reef Marine Park: defining bays and redefining regulatory control" (2009) 37 Federal Law Review 71: IX Johnson, Constance, "For keeping or for keeps? An Australian perspective on challenges facing the development of a regime for the protection of underwater cultural heritage" (2000) 1 Melbourne Journal of International Law 19: X Johnson, Deborah Lynne, "Electricity and the environment: current trends and future directions" (2008) New Zealand Journal of Environmental Law 195: I, XI Johnson, Murray, "Rail corridor native vegetation: legal compliance and sustainable management" (2000) 17 Environmental and Planning Law Journal 60: I, SD Johnson, Tammy, "Achieving the purpose of IPA: a case of hit and miss" (2008) 20 Bond Law Review 28: I Jones, Alison G, "Australia's damaging international trade practice: the case against cruelty to greyhounds" (2005) 14 Pacific Rim Law and Policy Journal 677: VIII Jones, David, "The Kyoto Protocol, carbon sinks and integrated environmental regulation: an Australian perspective" (2002) 19 Environmental and Planning Law Journal 109: CT, CC Jones, David, "Acid Sulfate Soils: the environmental time bomb" (2000) 7 Australasian Journal of Natural Resources Law and Policy 1: I, VII Jones, Judith S, "Regulating access to biological and genetic resources in Australia: a case study of bioprospecting in Queensland" (1998) 5 Australasian Journal of Natural Resources Law and Policy 89: VIII, XI, SD Joy, Martin and McConvill, James, "The interaction of directors' duties and sustainable development in Australia: setting off on the unchartered road" (2003) 27 Melbourne University Law Review 116: SD Juda, Lawrence, "Changing national approaches to ocean governance: the United States, Canada and Australia" (2003) 34 Ocean Development and International Law 161: IX, SS, SD Kapa, David, "The eradication of kiore and the fulfilment of Kaitiakitanga obligations" (2003) 9 Auckland University Law Review 1326: VIII Kapnoullas, Anna, "The ideal model for solar access rights" (2011) 28 Environmental and Planning Law Journal 416: RE, SD

Selected Bibliography of Periodical Literature

Kehoe, Jo, "Land clearing in Queensland" (2006) 23 Environmental and Planning Law Journal 148: VIII, SD Kehoe, Jo, "Environmental law making in Queensland: The Vegetation Management Act 1999 (Qld)" (2009) 26 Environmental and Planning Law Journal 392: XIII, VIII Keim, Stephen, "Queensland Conservation Council v Xstrata: a case report in three parts" (2007) 13 Queensland Environmental Practice Reporter 167: XIII Kelleher, Leonie, "Building on contaminated land" (2006) 80 Law Institute Journal 48: I, VII Kellow, Aynsley, "Lessons not learned in environmental governance: international climate policy beyond Kyoto" (2008) 11 Asia Pacific Journal of Environmental Law 101:CC Kelly, Andrew Hand Prest, James, "Implementation of threatened species law by local government in New South Wales" (2000) 17 Environmental and Planning Law Journal 584: I, VIII Kelly, Andrew H and Stolanoff, Natalie P, "Biodiversity conservation, local government finance and differential rates: the good, the bad and the potentially attractive" (2009) 26 Environmental and Planning Law Journal 5: XIII, VIII, TP Kelly, David, "Gene Technology Act 2000" (2001) 1 Biotechnology Law and Policy Reporter 1: XIII, I, SD Kelly, Nicholas, "A bridge? The troubled history of inter-state water resources and constitutional limitations on state water use" (2007) 30 University of New South Wales Law Journal 639: V, SD Kennedy, Beverly, "The operation of the new EPBC Act" (2000) 74 Law Institute Journal 61: SD Kerr, Arla Marie, "Untapped potential: administrative law and international environmental obligations" (2008) 6 New Zealand Journal of Public and International Law 81: XIII Kerr, Michael and Thompson, Leonie, "Being green: charitable or political?" (2003) 20 Environmental and Planning Law Journal 7: XIII Kimpton, Philip, "Recent domestic fisheries law and international cooperative developments" (2004) 19 International Journal of Marine and Coastal Law 537: VI, IX, SD

Katona, Jaqui, "Cultural protection in frontier Australia" (2002) 6 Flinders Journal of Law Reform 29: X

Kiyork, Sara, "The Gene Technology Act 2000 (Cth) and the licensing of Australia's first genetically _modified crop: a case study in ignoring risks of biodiversity" (2005) 22 Environmental and Planning Law Journal 174: SD

Kaye, Ralph, "Transnational environmental litigation" (2007) 24 Environmental and Planning Law Journal 35: XIV

Klein, Natalie, "Where were the tuna watchers? Lessons for Australia in litigating against Japan" (2008) 33 Alternative Law Journal 137: XCV, XIII, IX

Kaye, Stuart Band Rothwell, Donald R, "A legal framework for mtegrated oceans and coastal management in Australia" (2001) 18 Environmental and Planning Law Journal 278: VI, IX, SD

Klein, Ulrich, "Assessment of New Zealand's environmental planning model" (2005) New Zealand Journal of Environmental Law 287: I

Kearney, Tom, "Market-based policies for demand side energy efficiency: a comparison of the New South Wales Greenhouse Gas Abatement Scheme and the United Kingdom's Energy Efficiency Commitment" (2006) 23 Environmental and Planning Law Journal 113: II, CT, CC C

Klein, Ulrich, "Integrated resource management in New Zealand: A juridical analysis of policy plan and rule making under the RMA" (2001) New Zealand Journal of Environmental Law l: XI Knight, Dean, "Brothels, bylaws, prostitutes and proportionality" (2005) New Zealand Law Journal 423: TP ci

Australian Environmental Law

Knox, Matthew, "The Western Australian gas crisis: overview, response and challenges" (2008) 27 Australian Resources and Energy Law Journal 396: XI Koutsamanis, Adam, "The role of Strategic Environmental Assessment in Environmental Impact Assessment and the law" (2011) 16 LGLJ 99: J

Selected Bibliography of Periodical Literature

Leadbeter, Paul and Wawryk, Alexandra, "Is the fox still guarding the henhouse? Mining and environmental protection in South Australia" (2013) 30 Environmental and Planning Law Journal XI, VIII, I, XV

Kozlina.' Simon,_ "Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission: the AIRC and the exercise of private arbitral power" (2001) 24 University of New South Wales Law Journal 228: I

Leary, David, "The standing of civil society to enforce Commonwealth environmental law under section 475 of the Environment Protection and Biodiversity Conservation Act and its international implications: the Japanese whaling case and the law of unintended consequences" (2008) Macquarie Law Journal 153: XIII, SS

~se, ~udi, "Clima~~ change regulation in Australia: Addressing leakage and mternational competitiveness consistently with the law of the WTO" (2011) 28 Environmental and Planning Law Journal 297: CC

Leary, David, "From Bali to Poznan: an assessment of Australia's response to climate change in 2008" (2009) 26 Environmental and Planning Law Journal 190: II,

Ku~zera, Alicia, "Asbestos management in NSW: Policy challenges, legislative regimes and the role of local government" (2013) 18 LGLJ 177: I Kwarn:~a, Am~elin and Morgan, Sally, "Solid rock, sacred ground: cultural vandalism m the Pilbara" (2007) Australian Feminist Law Journal 9: CC Lab?witch, Sh~anne, "Integration and reconciliation of social, legal and env1:1"onmental mterests under Indigenous land rights sea claims" (2010) 27 Environmental and Planning Law Journal 189: IS

cc Leask, Andrew and Mason, David, "International law and Australian implementation of controls on the production and export of uranium ore concentrate" (2007) 26 Australian Resources and Energy Law Journal 249: I, VIII, SD, VII Lee, Meg, "Sustainable development law and the mining sector" (2007) 35 Australian Business Law Review 122: I, SD Leggat, Craig and Walker, Josie, "Unauthorised development" (2005) 19 Commercial Law Quarterly 3: I

L~ce~, C~ist?pher, "Post traumatic convention disorder: conserving high seas bwdiv~rs:,ty m the wake of the United Nations Convention on Biological Diversity (2000) 7 Australasian Journal of Natural Resources Law and Policy 47: IX

Leiboff, Marett, "Law's empiricism of the object: how law recreates cultural objects in its own image" (2007) Australian Feminist Law Journal 23: X

Lambropoulos, Victoria, "What can Australia learn from the Europeans about public participation? Article 6 of the Aarhus Convention and environmental unpact statements" (2010) 27 Environmental and Planning Law Journal 272: J, XIII

Leighfield, Sarah, "Of ships and sealing wax: planning the preservation of movable cultural heritage within Australia" (2000) 17 Environmental and Planning Law Journal 214: X, TP

Lavelle, Keren, "Life in the greenhouse: carbon trading and climate litigation" (2008) 46 Law Society Journal (Law Society of NSW) 30: II, CT, CC, XIv, I, SD

Leong, Michael, "Planning schemes as a mechanism to deal with environmental issues" (2002) 8 Queensland Environmental Practice Reporter 138: I

Lawrence, _Peter,_ "The Asia Pacific partnership on clean development and climate (A~~): a distraction to the Kyoto process or a viable alternative?" (2007) 10 Asia Pacific Journal of Environmental Law 183: CC

Letts, Laura, "Coal seam gas production - friend or foe of Queensland's water resources?" (2012) 29 Environmental and Planning Law Journal XI, V, VI

Lawren~e, Peter,_ "APEC promises a roar and delivers a whimper: the Sydney declaration on climate and energy" (2008) 11 Asia Pacific Journal of Environmental Law 29: CC

Levinson, James, "Sustainable water allocation by judges: the scope of judicial review of water allocation plans under the Water Resources Act 1997 (SA)" (2000) 17 Environmental and Planning Law Journal 353: I, V Lewis, Julie, "Standing on principle" (2006) 44 Law Society Journal 24: XIII, SS

L~wso~, Charles, "Implementing an objective of the Convention on Biological Diversity~' mtellectual property, access to genetic resources and benefit sharing in Australia (2005) 22 Environmental and Planning Law Journal 130: VIII

Lin, Jolene and Streck, Charlotte, "Mobilising Finance for Climate Change Mitigation: Private Sector Involvement in International Carbon Finance Mechanisms" (2009) 10 Melbourne Journal of International Law 70: II, CC, SD

Lawson, Charles'. "Pate~~s and plant breeder's rights over plant genetic resources for food and agnculture (2004) 32 Federal Law Review 107: VIII, XI, SD

Lindsay, Bruce; Riebl, Cecilia, ""Risk-based regulation" in environmental governance" (2013) 30 Environmental and Planning Law Journal 452: XIII

Lawson, Charles, "Risk assessment in the regulation of gene technology under the Gene Technology Act 2000 (Cth) and the Gene Technology Regulations 2001 (Cth)" (2002) 19 Environmental and Planning Law Journal 195: XIII, I, SD

Lipman, Zada, "Vicarious liability for independent contractors" (2000) 17 Environmental and Planning Law Journal 427: XIV, VIII, VII

Leadbe_ter, Paul, "Site contamination requirements under the Environment Prot_ection Act 1993 (SA) - an analysis of their nature and effect" (2013) 30 Environmental and Planning Law Journal 106: IX, VI Lea_dbeter, Paul, "Adaptive reuse of heritage buildings - do current planning and heritage controls support the concept?" (2013) 30 Environmental and Planning Law Journal 491: TP, XIII, SD, X cii

Lipman, Zada, "An evaluation of compliance and enforcement mechanisms in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and their application by the Commonwealth" (2010) 27 Environmental and Planning Law Journal 98: XV, XVI Lipman, Zada and Stokes, Robert, "Shifting sands: the implications of climate change and a changing coastline for private interests and public authorities in relation to waterfront land" (2003) 20 Environmental and Planning Law Journal 406:

cc

ciii

Selected Bibliography of Periodical Literature

Australian Environmental Law

Lipman, Zada and Stokes, Robert, "The technocrat is back: environmental land-use planning reform in New South Wales" (2008) 25 Environmental and Planning Law Journal 305: I, TP

Lyster, Rosemary, "(De)regulating the rural environment" (2001) 18 Environmental and Planning Law Journal 445: I, IX, VIII

Lipman, Zada; Farrugia, Melissa, "Obligation to report and manage pollution incidents" (2013) 18 LGLJ 18: VIII, I

Lyster, Rosemary, "Domestic and international carbon offsets under the Carbon pollution reduction scheme: what prospects?" (2008) 27 University of Tasmania Law Review 111: CT, CC

Lipman, Zada; Stokes, Robert, "That sinking feeling: A legal assessment of the coastal planning system in New South Wales" (2011) 28 Environmental and Planning Law Journal 182: VI, I

Lyster, Rosemary, "Chasing down the climate change footprint of the public and private sectors: forces converge: part II" (2007) 24 Environmental and Planning Law Journal 450: CC

Liverani, Mary Rose, "Transnationals risk double standards on human rights" (2001) 39 Law Society Journal 25: X

Lyster, Rosemary, "The Australian carbon pollution reduction scheme: what role for complementary emissions reduction regulatory measures?" (2008) 31 University of New South Wales Law Journal 880: CT, CC

Livingstone, Mia Louise, "Who will be liable for Australia's solution to pollution? An analysis of the scope of businesses' liability under the Carbon pollution reduction scheme" (2009) 26 Environmental and Planning Law Journal 292: XN, SD

Lyster, Rosemary, "Coal seam gas in the context of global energy and climate change scenarios" (2012) 29 Environmental and Planning Law Journal 91: CC, SD

Livingstone, Mia Louise "Culpability versus liability: Is the polluter ultimately liable for cleaning up groundwater contamination in Victoria?" (2013) 30 Environmental and Planning Law Journal V, XIII, XVI

Lyster, Rosemary, "The new frontier of climate law: Reducing Emissions from Deforestation (and Degradation)" (2009) 26 Environmental and Planning Law Journal 417: CT, CC

Lodge, Michael W, "The practice of fishing entities in regional fisheries management organizations: the case of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean" (2006) 37 Ocean Development and International Law 185: VI, IX, SD

Lyster, Rosemary, "Australia's Clean Energy Future Package: Are we there yet?" (2011) 28 Environmental and Planning Law Journal 446: CT, RE

Lombardo, Lucia, "Overview of floating production, storage and offtake (FPSO) services agreements" (2003) 22 Australian Resources and Energy Law Journal 468: VII Long, Stephanie, "Climate change. Could litigation provide equity where the Kyoto Protocol is failing?" (2004) 29 Alternative Law Journal 92: CC Loos, Nicholas and Peters, Christopher, "Queensland's innovative biodiscovery legislation" (2005) 33 Australian Business Law Review 146: VIII Ludlow, Karinne, "Gene technology regulation and the Environment Protection and Biodiversity Conservation Act 1999 (Cth)" (2004) 30 Monash University Law Review 165: IV, SD Ludlow, Karinne, "Genetically modified organisms and pollution in Victoria" (2004) 21 Environmental and Planning Law Journal 351: XIII, I, SD Ludlow, Karinne, "Cultivating chaos: state responses to releases of genetically modified organisms" (2004) 9 Deakin Law Review 1: XIII, I, SD Ludlow, Karinne, "A clone with your fries? The regulation of cloned farm animals in Australia" (2006) 23 Environmental and Planning Law Journal 185: XIII, I, SD Ludlow, Karinne, "Genetically modified organisms and private nuisance liability" (2005) 13 Tort Law Review 92: VIII, SD

Macgill, Iain, "Assessing Australia's sustainable energy technology options: key issues, uncertainties, priorities and potential choices" (2008) 11 Asia Pacific Journal of Environmental Law 85: CC Macintosh, Andrew, "The Garnaut review's targets and trajectories: a critique" (2009) 26 Environmental and Planning Law Journal 88: I Macintosh, Andrew, "Why the Environment Protection and Biodiversity Conservation Act's referral, assessment and approval process is failing to achieve its environmental objectives" (2004) 21 Environmental and Planning Law Journal 288: XIV

Macintosh, Andrew, "The Environment Protection and Biodiversity Conservation Act 1999 (Cth): An evaluation of its cost-effectiveness" (2009) 26 Environmental and Planning Law Journal 337: XIII Macintosh, Andrew and Wilkinson, Debra, "EPBC Act: the case for reform" (2005) 10 Australasian Journal of Natural Resources Law and PolietJ 139: XIII Macintosh, Andrew and Wilkinson, Deb, "Evaluating the Success or Failure of the EPBC Act; A Response to McGrath" (2007) 24 Environmental and Planning Law Journal 81: I Macintosh, Andrew and Cunliffe, Jancis, "The significance of ICM in the evolution of s 51(xxxi)" (2012) 29 Environmental and Planning Law Journal 297: CC

Ludlow, Karinne, "The economic impact of genetically modified organisms as actionable damage in torts" (2005) 13 Torts Law Journal 159: VIII

Macintosh, Andrew and Waugh, Lauren, "An introduction to the Carbon Farming Initiative: Key principles and concepts" (2012) 29 Environmental and Planning Law Journal 439: CT

Lyster, Rosemary, "Electricity privatisation in New South Wales: what are the climate change and broader sustainability implications?" (2008) 25 Environmental and Planning Law Journal 229: XII, I

Macrory, Richard, "Standards, legitimacy and the law: the new environmental agenda" (2001) 18 Environmental and Planning Law Journal 242: XIII

Lyster, Rosemary, "The implications of electricity restructuring for a sustainable energy framework: what's law got to do with it?" (2003) 20 Environmental and Planning Law Journal 359: SD civ

Magallanes, Catherine Iorns and Ruka, George, "Environmental law or palm-tree Justice?" (2009) New Zealand Law Journal 185: I

CV

Selected Bibliography of Periodical Literature

Australian Environmental Law

Maguire, Rowena; Phillips, Angela, "The role of property law in environmental management: An examination of environmental markets" (2011) 28 Environmental and Planning Law Journal 215: I, SD

McDonald, Jan, "Regional forest (dis) agreements: the RFA process and sustainable forest management" (1999) 11 Bond Law Review 295: I, VIII, SD

Malone, Susan, "Is the judiciary warming to global warming?" (2007) 26 Australian Resources and Energy Law Journal 92: CC

Law Journal 41: XIII

Mamouney, Louisa, "Should local government be responsible for biodiversity management? A critical review of local government's ability to manage biodiversity loss in NSW through the development process" (2000) 17 Environmental and Planning Law Journal 138: I, SS, TP Marohasy, Jennifer and et al, "Impacts of water policy, legislation and regulation on Queensland's sugarcane growing industry" (2002) 8 Queensland Environmental Practice Reporter 33: V Marsden, Simon, "Strategic environmental assessment in Australian land-use planning" (2013) 30 Environmental and Planning Law Journal 422: I, XI Marshall, Donald G and Moore, Susan A, "Tragedy of the commons and the neglect of science: planning and management in the Shark Bay World Heritage Area" (2000) 17 Environmental and Planning Law Journal 126: VIII Martin, Paul and Cunningham, Neil, "Leading reform of natural resource management law: Core principles" (2011) 28 Environmental and Planning Law Journal 137: XI, SD Martin, Paul; Kennedy, Amanda; Page, John and Williams, Jacqueline, "Environmental property rights in Australia: Constructing a new Tower of Babel" (2013) 30 Environmental and Planning Law Journal 531: SD Mascher, Sharon, "Too hot to handle? Uranium and nuclear power in Australia's energy mix" (2007) 26 Australian Resources and Energy Law Journal 330: I, VIII, SD, VII Mateljan, Sarah, "Water wars: preventing and resolving conflicts over transboundary groundwater resources" (2007) 14 E Law (Murdoch University Electronic Journal of Law) 178: V Mattila, Jenni, "Trading water" (2008) 46 Law Society Journal 56: V McBride, Tim, "Country reports: New Zealand" (1997) 2 Asia Pacific Journal of Environmental Law 159: IV McClellan, Peter, "Environmental law and the courts" (2003) 77 Australian Law

Journal 715: XIII, XI McDermott, Matthew, "Effective environmental dispute resolution in Queensland: Commentary and critiques from the Planning and Environment Court" (2013) 30 Environmental and Planning Law Journal 150: XV

McDonald, John M, "Restorative justice process in case law" (2008) 33 Alternative McGarrity, Nicola and Williams, George, "Recognition of local government in the Commonwealth Constitution" (2010) 21 Public Law Review 164: XIII McGowan, June, "New defender's office in heart of environment movement" (2006) 44 Law SociehJ Journal 20: XIV, XIII McGrath, Chris, "Swirls in the stream of Australian environmental law: debate on the EPBC Act" (2006) 23 Environmental and Planning Law Journal 165: XIII McGrath, Chris, "Flying foxes, dams and whales: using Federal environmental laws in the public interest" (2008) 25 Environmental and Planning Law Journal 324: XIII,SS McGrath, Chris, "Setting climate change targets to protect the Great Barrier Reef" (2007) 24 Environmental and Planning Law Journal 182: CC, IX McGrath, Chris, "Key concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)" (2005) 22 Environmental and Planning Law Journal 20: VIII McGrath, Chris, "Minister appeals the Nathan Dam case" (2004) 21 Environmental

and Planning Law Journal 90: V McGrath, Chris, "Minister for the Environment and Heritage v Greentree [2003] FCA 857'' (2003) 20 Environmental and Planning Law Journal 476: IV, SD McGrath, Chris, "The Queensland bilateral" (2002) 8 Queensland Environmental Practice Reporter 145: I McGrath, Chris, "The Flying Fox Case" (2002) 8 Queensland Environmental Practice Reporter 64: VIII, SS McGrath, Chris, "Bilateral agreements: are they enforceable?" (2000) 17 Environmental and Planning Law Journal 485: XIII McGrath, Chris, "Regulating greenhouse gas emissions from Australian coal mines" (2008) 25 Environmental and Planning Law Journal 240: II, CC McGrath, Chris, "Summary and critical analysis of major vegetation management law in Queensland" (2002) 8 Queensland Environmental Practice Reporter 86: SD McGrath, Chris, "Uranium mining, use and disposal law in Australia: the case for a cradle-to-grave philosophy" (2000) 17 Environmental and Planning Law Journal 502: I, VIII, SD, VII McGrath, Chris, "The Fraser Island Dingo Case" (2001) 18 Environmental and Planning Law Journal 269: VIII

McDonald, Jan, "From paddock to plate, international GMO labelling standards remain blocked by trade concerns" (2005) 22 Environmental and Planning Law Journal 245: SD

McGrath, Chris, "Casenote: Booth v Bosworth" (2001) 18 Environmental and Planning Law Journal 23: VIII, SS

McDonald, Jan, "The WTO biotech products dispute and precaution and science international GMO trade" (2004) 21 Environmental and Planning Law Journal 413: I, VIII, SD

and Planning Law Journal 333: IX

McDonald, Jan, "Politics, process and principle: mutual supportiveness or irreconcilable differences in the trade-environment linkage" (2007) 30 University of New South Wales Law Journal 524: I cvi

McGrath, Chris, "Japanese Whaling Case Appeal Succeeds" (2006) 23 Environmental McGrath, Chris, "The Japanese Whaling Case" (2005) 22 Environmental and Planning Law Journal 250: IX McGrath, Chris, "Australia's draft climate laws" (2010) 26 Environmental and Planning Law Journal 267: CC cvii

Australian Environmental Law

McGratlh, Chris, "Federal Issues: The Greentree Case" (2004) 21 Environmental and Planning Law Journal 249: XIll, I

Selected Bibliography of Periodical Literature

McHarg, Aileen, "Regulating for sustainable electricity market outcomes in Britain: Asking the law question" (2013) 30 Environmental and Planning Law Journal 289: SD

Meyers, Gary D, "Divining common law standards for environmental protection: application of the public trust doctrine in the context of reforming NEPA and the Commonwealth Environmental Protection Act" (1994) 11 Environmental and Planning Law Journal 289: XIll, I Mfodwo, Kwame, "Risk-based management of historically contaminated land in NSW: an analysis of the regime under the Contaminated Land Management Act 1997 (NSW)" (2006) 11 Australasian Journal of Natural Resources Law and Policy 43:

McKay, Jennifer, "Insubstantial, tenuous and vague laws: the achievement of ecologically sustainable development by water supply business CEOs" (2008) 36 Australian Business Law Review 432: V, SD

VII Midence, Ana Gabriela Platero, "Protected areas strategy: an overview of New Zealand and Guatemala" (2005) New Zealand Journal of Environmental Law 91: VIII

McKay, Jennifer and Moeller, Anthony, "Is it time for a new model of water quality laws?" (2000) 17 Environmental and Planning Law Journal 165: I, V

Millard, Louise and Wylynko, Brad, "Sustainable development: the new legal paradigm" (2002) 8 Queensland Environmental Practice Reporter 212: SD

McGregor, David, "Winery waste management: the New Zealand experience" (2000) 5 Flinders Journal of Law Reform 79: V, IV

McKenzie, Michael, "Water rights in NSW: properly property?" (2009) 31 Sydney Law Review 443: V Mc.Killop, Jeanie, et al, "Evaluating environmental dispute resolution" (2003) 14 Australasian Dispute Resolution Journal 142: XIlI McKinlay, Bridget; Mitchell, Jason and Percy, Majella, "Voluntary environmental reporting practices: a further study of "poor" environmental performers" (2006) 19 Australian Journal of Corporate Law 182: XIV McManus, Francis, "Planning permission, the law of nuisance and human rights" (2011) 19 Tort Law Review 29: TP, I McMullen, Vince and Willey, Stephen, "Planning appeals in Western Australia: where to now?" (2004) 21 Environmental and Planning Law Journal 124: I

Miller, Denzil G M; Ramm, David C and Sabourenkov, Eugene N, "Managing Antarctic marine living resources: the CCAMLR approach" (2004) 19 International Journal of Marine and Coastal Law 317: VI, IX, SD Milligan, John, "Equity in the Resource Management Act: Section 5, and a 'capability' approach to justice" (2000) New Zealand Journal of Environmental Law 245: XI Minchin, Nick, "Responding to climate change: providing a policy framework for a competitive Australia" (2001) 7 University of New South Wales Law Journal forum 13: cc Mitcalfe, Kate, "Fronting up: mediation under the Resource Management Act 1991" (2001) New Zealand Journal of Environmental Law 195: XI

McMurray-Cathcart, Kimberly, "Breaching resource consent conditions" (2000) 9 Auckland University Law Review 280: XIII, XI

Mitchell, Andrew D; Ayres, Glyn, "Out of crooked timber: The consistency of Australia's Illegal Logging Prohibition Bill with the WTO Agreement" (2012) 29 Environmental and Planning Law Journal 462: SD

McShane, Owen, "Resource management: public and private costs" (2002) New Zealand Law Journal 27: XI

Morgan, David, "International trade rules and the implications for biotechnology regulation" (2004) 8 Asia Pacific Journal of Environmental Law 177: I

Mead, Stephanie Joan, "The precautionary principle: a discussion of the principle's meaning and status in an attempt to further define and understand the principle" (2004) New Zealand Journal of Environmental Law 137: I, SD, TP

Mossop, Joanna, "Environmental emergencies in Antarctica" (2005) New Zealand Law Journal 330: XIlI

Mee, Jennifer, "Transition to the new carbon regulatory market" (2008) 27 Australian Resources and Energy Law Journal 53: II, CT, XIV, I, SD

Mossop, Joanna, "When Is a Whale Sanctuary Not a Whale Sanctuary? Japanese Whaling in Australian Antarctic Maritime Zones" (2005) 36 Victoria University of Wellington Law Review 757: IX

Memon, Ali and Skelton, Peter, "Institutional arrangements and planning practices to allocate freshwater resources in New Zealand: a way forward" (2007) New Zealand Journal of Environmental Law 241: V

Muirden, April and Bailey, John, "Presenting scientific evidence in environmental court cases: How science and law meet" (2008) 25 Environmental and Planning Law Journal 425: I

Memon, Ali and Skelton, Peter, "The practice of environmental compensation under the Resource Management Act 1991" (2004) New Zealand Journal of Environmental Law 177: XI

Muirden, April; Bailey, John, "Presenting scientific evidence in environmental court cases: How science and law meet" (2008) 25 Environmental and Planning Law Journal 425: XV, XVIII

Merry, Malcolm, "Indigenous rights in disrepute: The curious case of Hong Kong" (2013) 2 Prop L Rev 152: IS Meyers, Charles, "An introduction to environmental thought: some sources and some criticisms" (1975) 50 Indiana Law Journal 426: XIlI Meyers, Gary D, "Native title rights in natural resources: a comparative perspective of common law jurisprudence" (2002) 19 Environmental and Planning Law Journal 245: X, VI, XI cviii

Murtha, Meghan, "Granting salmon standing: Modernising public nuisance to serve the public interest in environmental protection" (2009) 17 Tort Law Review 45:

ss Nagorcka, Felicity, "Saying what you mean and meaning what you say: precaution, science and the importance of language" (2003) 20 Environmental and Planning Law Journal 211: I, SS, SD, TP Neilson, Rowan, "Proposals for the future regulation of biotechnology in Australia" (1992) 18 Melbourne University Law Review 692: I, VIII, SD cix

Selected Bibliography of Periodical Literature

Australian Environmental Law

Neilson, Scott, "Erosion of security: impact of changes under the Water Management Act 2000 (NSW) on financiers' security" (2003) 14 Journal of Banking and Finance Law and Practice 108: V

O'Connor, Pamela, "Covenants as regulation" (2011) 1 Prop Law Rev 145: XIIl, XV,

XVI

Nelson, Rebecca, "Legislation for ICM: advancing water resources sustainability?" (2005) 22 Environmental and Planning Law Journal 96: SD

O'Connor, Pamela; Christensen, Sharon, Duncan, WD, and Phillips, Angela, "From rights to responsibilities: Reconceptualising carbon sequestration rights in Australia" (2013) 30 Environmental and Planning Law Journal 403: CT

Nelson, Rebecca and Sharman, Bethany, "More than tilting at windmills: a bird's eye view of a bio-offsets scheme under the EPBC Act" (2007) 24 Environmental and Planning Law Journal 17: CT, SD

O'Donnell, Michael, "Native title - a right to burn and fire the land? Savanna burning and the Carbon Farming Initiative in northern Australia" (2013) 30 Environmental and Planning Law Journal 553: CT, IS

Nevill, Jon, "Managing the cumulative effects of incremental development in freshwater resources" (2003) 20 Environmental and Planning Law Journal 85: V, SD

O'Donnell, Tayanah and Gates, Louise, "Getting the balance right: A renewed need for the public interest test in addressing coastal climate change and sea level rise" (2013) 30 Environmental and Planning Law Journal 220: SS, CC, IX

Newman, Andrew, "Creating the power for renewal: Evaluation of New South Wales' renewable energy planning law changes and suggestions for further reform" (2012) 29 Environmental and Planning Law Journal 498: RE, SD

O'Mara, Alexandra, "Procedural fairness and public participation in planning" (2004) 21 Environmental and Planning Law Journal 62: Xll, I

Nguyen, Bethia, "Aboriginal cultural heritage in Western Australia: practical issues for miners" (2005) 24 Australian Resources and Energy Law Journal 383: X, XI

Ogle, Lisa, "The Environment Protection and Bi~diversity Act 1999 (Cth): how workable is it?" (2000) 17 Environmental and Planning Law Journal 468: VIII

Nheu, Natalina, "The continuing challenge of water management reform in NSW" (2002) 19 Environmental and Planning Law Journal 217: I, V

Olsen, Andrea, "The imposition of IPA planning schemes: validity under the Native Title Act 1993 (Cth)" (2002) James Cook University Law Review 226: X, I

Nicholls, David and Young, Torn, "Australian fisheries management and ESD: the one that got away?" (2000) 17 Environmental and Planning Law Journal 272: IX

Ong, Su-Wuen, "I've got more experts than you: experts and the environment court" (2001) New Zealand Journal of Environmental Law 261: XIII

Nicholson, Graham, "The common heritage of mankind and mining: an analysis of the law as to the High Seas, outer space, the Antarctic and World Heritage" (2002) New Zealand Journal of Environmental Law 177: XI

Osofsky, Hari M; Peel, Jacqueline, "The role of litigation in multilevel climate change governance: Possibilities for a lower carbon future?" (2013) 30 Environmental and Planning Law Journal 303: CC, XV

Nicholson, Simon, "Water scarcity, conflict and international water law: an examination of the regime established by the UN Convention on International Watercourses" (2001) New Zealand Journal of Environmental Law 91: V

Overell, Michael; Chapple, Larelle and Clarkson, Peter M, "Environmental reporting in the Australian mining industry: Complying with regulation or meeting international best practice?" (2008) 36 Australian Business Law Review 137: XI, XIV, XIII

Nolan, Justine, "Human rights, the environment and business. What corporate lawyers need to know" (2004) 42 Law Society Journal 66: X Nolan, Sarah, "Affected persons under the Resource Management Act 1991" (2007) Canterbury Law Review 121: XI, SD

Owens, Katherine, "Strategic Regional Land Use Plans: Presenting the future for coal seam gas projects in New South Wales?" (2012) 29 Environmental and Planning Law Journal 113: XI, SD

Noonan, Peter, "A different view on comments made in the paper 'Impacts of Water Policy, Legislation and Regulation on Queensland's Sugercane Growing Industry"' (2002) 8 Queensland Environmental Practice Reporter 122: V, IX

Paisley, Richard, "Adversaries into partners: international water law and the equitable sharing of downstream benefits" (2002) 3 Melbourne Journal of International Law 280: V

Nott, Jonathan, "Washed away: people and building during tropical cyclones: are Queensland State and local government policies doing enough?" (2004) 21 Environmental and Planning Law Journal 227: TP

Palma, Mary Ann; Schofield, Clive and Tsarnenyi, Martin, "Securing maritime Australia: developments in maritime surveillance and security" (2008) 39 Ocean Development and International Law 94: VI, IX, SD

Nunan, Tony, "Legal issues emerging from the growth of the coal seam gas industry of Queensland" (2006) 25 Australian Resources and Energy Law Journal 189: XIII

Journal of Environmental Law 271: IX

Nyce, Olivia, "Water markets under the Resource Management Act 1991: do they hold water?" (2008) Canterbury Law Review 123: V O'Bryan, Katie, "Issues in natural resource management: inland water resources: implications of native title and the future of Indigenous control and management of inland waters" (2007) 14 E Law (Murdoch University Electronic Journal of Law) 280: V O'Connor, Gary, "Waste tracking national and Queensland systems" (2002) 8 Queensland Environmental Practice Reporter 123: N ex

Palmer, Kenneth, "The Hauraki Gulf Marine Park Act 2000" (2000) New Zealand Palmer, Ken, "Resource management law in New Zealand: recent issues" (2002) 9 E Law (Murdoch University Electronic Journal of Law) l: XI Palmer, Kenneth, "Local government law and resource management" (2002) New Zealand Law Review 593: TP Palmer, Kenneth, "Local government and resource management" (2000) New Zealand Recent Law Review 485: TP Palmer, Kenneth, "Reflections on the history and role of the Environment Court in New Zealand" (2010) 27 Environmental and Planning Law Journal 69: XV cxi

Australian Environmental Law

Palmer, Ken and Richardson, Benjamin J, "The emerging 'citizenship' discourse in environmental law: a New Zealand perspective" (2000) 17 Environmental and Planning Law Journal 99: XIII, SS Park, Holly, "Fragments of forest management, a private practice: an assessment of the implementation of the Regional Forest Agreements on private land in the southern and Eden regions of NSW" (2006) 10 Australasian Journal of Natural Resources Law and Policy 183: I, VIII Parry, David R, "The use of facilitative dispute resolution in the State Administrative Tribunal of Western Australia - Central rather than alternative dispute resolution in planning cases" (2010) 27 Environmental and Planning Law Journal 113: XV Pearson, Linda, "Jurisdictional fact: a dilemma for the courts" (2000) 17 Environmental and Planning Law Journal 453: XIII

Selected Bibliography of Periodical Literature

Pittock, Jamie; Finlayson, Max; Gardner, Alex and McKay, Clare, "Changing character: The Ramsar Convention on Wetlands and climate change in the Murray-Darling Basin, Australia" (2010) 27 Environmental and Planning Law Journal 401: SD, CC Plein, Anne Lucia, "A story between success and challenge: 20th anniversary of the Montreal Protocol" (2007) New Zealand Journal of Environmental Law 67: CC Poisel, Tim, "Coal seam gas exploration and production in New South Wales: The case for better strategic planning and more stringent regulation" (2013) 29 Environmental and Planning Law Journal 129: I, XI Poisel, Tim, "(Environmental) crime does not pay: The effectiveness of the criminal prosecutions under pollution legislation in NSW" (2013) 18 LGLJ 77: XVI, XV

Pearson, Linda and Williams, Peter, "The New South Wales planning reforms: undermining external merits review of land-use decision-making?" (2009) 26 Environmental and Planning Law Journal 19: I

Poletti, Elda M, "The interface of sensitive private land issues and mining: Victorian reforms seeking resolution" (2007) 26 Australian Resources and Energy Law Journal 202: X, XI Power, Michael, "Emissions trading in Australia: Markets, law and justice under the CPRS" (2010) 27 Environmental and Planning Law Journal 131: CT

Peart, Raewyn, "Innovative approaches to water resource management: a comparison of the New Zealand and South African approaches" (2001) New Zealand Journal of Environmental Law 127: V

Power, Mary R, "Windmills on the horizon of the Great Ocean Road: an interactive exercise in multi-party dispute prevention and resolution" (2004) 15 Australasian Dispute Resolution Journal 90: SD

Pecot, Mathias, "The conservation of marine biological diversity in areas beyond national jurisdiction" (2005) 22 Environmental and Planning Law Journal 459: IX

Power, Tim, "Building green" (2008) 82 Law Institute Journal 42: I

Peden, Elisabeth, "Conservation agreements: contracts or not?" (2008) 25 Environmental and Planning Law Journal 136: XIV, XIII, SD Peel, Jacqueline, "Ecologically sustainable development: more than mere lip service?" (2008) 12 Australasian Journal of Natural Resources Law and Policy 1: SD Peel, Jacqueline, "A paper umbrella which dissolves in the rain? The future for resolving fisheries disputes under UNCLOS in the aftermath of the Southern Bluefin Tuna arbitration" (2002) 3 Melbourne Journal of International Law 53: VI, IX, SD Peel, Jacqueline, "Climate change law: the emergence of a new legal discipline" (2008) 32 Melbourne University Law Review 922: CC Peel, Jacqueline, "Precaution: a matter of principle, approach or process?" (2004) 5 Melbourne Journal of International Law 483: I, SS, SD, TP Peel, Jacqueline and Michael Power, "Climate change law: Lessons from the Californian experience" (2010) 27 Environmental and Planning Law Journal 169: CC Peppler, Emma, "Take out the trash: good waste management has benefits for the environment and a firm's budget" (2009) 83 Law Institute Journal 84: IV Perry, Melissa, "The Environment Protection and Biodiversity Conservation Act: accommodating the public interest" (2008) 27 Australian Resources and Energy Law Journal 433: XIII, I Petrie, Lesley-Anne, "The implementation of heritage legislation in South Australia: a comment on I and N A Davies Pty Ltd v City of Unley" (2005) 8 Flinders Journal of Law Reform 235: CC Pirona, Monique, "Young lawyers going offshore: harmonising Asia-Pacific Law Conference" (1994) 32 Law Society Journal 79: I cxii

Power, Trevor, "Joint management at Uluru: Kata Tjuta National Park" (2002) 19 Environmental and Planning Law Journal 284: X Power, Trevor M, "Issues and opportunities for Australia under the Kyoto Protocol" (2003) 20 Environmental and Planning Law Journal 459: I Poynton, Peter, "Indigenous water rights Hawaiian style" (2000) James Cook University Law Review 259: X, I, V Prendergast, Colleen, "Funding the infrastructure required to mitigate the effects of development" (2004) New Zealand Journal of Environmental Law 327: SD, I Prentice, Joshua, "Energy efficiency or energy wasted? The record of Australian and Swedish law to improve energy efficiency in the buildings sector" (2013) 30 Environmental and Planning Law Journal 236: RE Preston, Brian J, "Environmental law 1927-2007: retrospect and prospect" (2007) 81 Australian Law Journal 616: XIII Preston, Brian J, "Climate change litigation" (2009) 26 Environmental and Planning Law Journal 169: CC, XIV, XIII Preston, Brian J, "Ecologically sustainable development in the context of contaminated land" (2008) 25 Environmental and Planning Law Journal 164: I, IV, VII Preston, Brian J, "Sustainable development law in the courts: the polluter pays principle" (2009) 26 Environmental and Planning Law Journal 257: XIV Preston, Brian J, "The art of judging environmental disputes" (2008) Southern Cross University Law Review 103: XIII, XV Preston, Brian J, "The role of the judiciary in promoting sustainable development: the experience of Asia and the Pacific" (2005) 9 Asia Pacific Journal of Environmental Law 109: SD cxiii

Australian Environmental Law

Preston, Brian J "Jurisprudence on ecologically sustainable development: Paul Stein's contribution" (2012) 29 Environmental and Planning Law Journal 3: SD Preston, Brian J, "Climate change litigation actions for future generations" (2008) 25 Environmental and Planning Law Journal 385: XV, XVI Preston, Brian J, "Adapting to the impacts of climate change: The limits and opportunities of law in conserving biodiversity" (2013) 30 Environmental and Planning Law Journal 375: CC Preston, Brian J, "Operating an environment court: The experience of the Land and Environment Court of New South Wales" (2008) 25 Environmental and Planning Law Journal 285: Xill, XV

Selected Bibliography of Periodical Literature

Raff, Murray, "Environment Protection and Biodiversity Conservation Act and the Draft Bilateral Agreement with the State of Victoria" (2000) 17 Environmental and Planning Law Journal 369: I Raff, Murray, "Environmental impact assessment and the transitional provisions of the EPBC" (2001) 18 Environmental and Planning Law Journal 5: Xill, I Raine, Michael, "Australia and Kyoto: are we really doing our share?" (2005) 11 Queensland Environmental Practice Reporter 26: SD Randall, Alan, "Coal seam gas - Toward a risk management framework for a novel intervention" (2012) 29 Environmental and Planning Law Journal 152: XI, SD

Preston, Brian J, "Leadership by the courts in achieving sustainability" (2010) 27 Environmental and Planning Law Journal 321: XV, SD

Rayfuse, Rosemary, "Drowning our sorrows to secure a carbon free future? Some international legal considerations relating to sequestering carbon by fertilising the oceans" (2008) 14 University of New South Wales Law Journal forum 54: I, VI, IX

Preston, Brian J, "The use of restorative justice for environmental crime" (2011) 35 Crim LJ 136: XV, XVI

Rayfuse, Rosemary and Scott, Shirley, "Australia's climate change law and diplomacy" (2008) 11 Asia Pacific Journal of Environmental Law l: CC

Preston, Brian J, "Enforcement of environmental and planning laws in New South Wales" (2011) 16 LGLJ 72: Xill, XVI

Rayfuse, Rosemary and Warner, Robin, "Securing a sustainable future for the oceans beyond national jurisdiction: the legal basis for an integrated cross-sectoral regime for high seas governance for the 21st century" (2008) 23 International Journal of Marine and Coastal Law 399: I, VI

Preston, Brian J, "Consultation: One aspect of procedural propriety in administrative decision-making" (2008) 15 Australian Journal of Administrative Law 185: 1, xvm Preston, Brian J, "The environment and its influence on the law" (2008) 82

Australian Law Journal 180:

xm

Preston, Brian J and Donnelly, Hugh, "The establishment of an environmental crime sentencing database in New South Wales" (2008) 32 Crim LJ 214: XV, XVI

Redwood, Jill, "Sweet RFA" (2001) 26 Alternative Law Journal 255: I, Vill, SD Richardson, Benjamin J., "Environmental regulation through financial institutions: new pathways for disseminating environmental policy" (2002) 19 Environmental and Planning Law Journal 58: xm

Preston, Judith A, "Participation from the deep freeze: "Chilling" by SLAPP suits" (2014) 31 Environmental and Planning Law Journal 47: XV

Riley, Sophie, "Law is order, and good law is good order: The role of governance in the regulation of invasive alien species" (2012) 29 Environmental and Planning Law Journal 16: XV, XVII

Preston, Judith and Scott, Jennifer, "Meeting the climate change challenge in local government decision-making with the use of sustainable climate change adaptation modelling" (2012) 17 LGLJ 135: CC

Rimmer, Matthew, "Legal protection of indigenous traditional knowledge and cultural expression. Blame it on Rio: biodiscovery, native title, and traditional knowledge" (2003) Southern Cross University Law Review 1: CC

Preston-Samson, Amy, "Navigating muddy waters: Does the High Court have a role in adjudicating interstate river disputes?" (2012) 29 Environmental and Planning Law Journal 373: XV

Rintoul, Nicholas, "Protection of water catchments under the Planning and Environment Act 1987" (2000) 74 Law Institute Journal 66: V, SD

Price, Karen and Duffin, Jessie, "Trading carbon the kiwi way" (2013) 30 Environmental and Planning Law Journal 357: CT Primozic, Lauren, "Greening Australia's public health system: The role of public hospitals in responding to climate change" (2009) 17 JLM 772: CC Pye, Anne, "Water trading along the Murray: a South Australian perspective" (2006) 23 Environmental and Planning Law Journal 131: V Pye, Anne, "Effective protection of regional biodiversity in South Australia: some suggestions" (2008) 12 Australasian Journal of Natural Resources Law and Policy 35:

vm Quiggin, John and Tan, Poh-Ling, "Sustainable management of the Great Artesian Basin: an analysis based on law and environmental economics" (2004) 9 Australasian Journal of Natural Resources Law and PoliC1J 255: V, SD Rackemann, Michael, "Environmental dispute resolution - lessons from the States" (2013) 30 Environmental and Planning Law Journal 329: XV cxiv

Robinson, David, "Strategic planning for biodiversity in New South Wales" (2009) 26 Environmenta( and Planning Law Journal 213: I Rochford, Francine, "Liability in negligence of water authorities for contaminated water" (2005) 10 Australasian Journal of Natural Resources Law and Policy 39: XIV, V, IX Rochford, Francine, "Sustainable rural water delivery: balancing resource and social sustainability" (2008) 12 Australasian Journal of Natural Resources Law and Policy 59: V Rochford, Francine, '"Private' rights to water in Victoria: farm dams and the Murray Darling Basin Commission Cap on diversions" (2004) 9 Australasian Journal of Natural Resources Law and Policy 229: I, V Rogers, Barclay, "Water wars" (2008) New Zealand Law Journal 361: V Rohl, Kylie, "Gene technology-food labelling standards come into force" (2001) 1 Biotechnology Law and Policy Reporter 17: Xill, I, SD

CXV

Australian Environmental Law

Ross, Andrew, "National institutions for sustainable development: the challenge of long-term policy integration" (2005) 10 Australasian Journal of Natural Resources Law and Policy 109: SD Rothwell, Donald R, "International law and the Murray-Darling Basin Plan" (2012) 29 Environmental and Planning Law Journal 268: V Round, David, "Here be dragons" (2005) 11 Otago Law Review 31: XI Ruddock, Kirsty, "Bankruptcy: the price for seeking to protect Indigenous rights?" (2009) 26 Environmental and Planning Law Journal 81: X, I Ryan, Georgiena, "Water licences and land come adrift" (2004) 42 Law Society Journal 55: V Ryan, Patricia F., "Did we? Should we? Revisiting the 70s' environmental law challenge in NSW" (2001) 18 Environmental and Planning Law Journal 561: XIII, I Sadler, Robert, "Wanted: water: rights of access to water" (2003) 77 Law Institute Journal 43: V Sagoff, Mark, "On preserving the natural environment" (1974) 84 Yale Law Journal 205: VIIl, IX Sahathevan, Ganesh, "An analysis of the New South Wales Greenhouse Gas Abatement Certificate from an investor's perspective" (2004) 32 Australian Business Law Review 42: CT, XIII, SD Scanlon, John, "A hundred years of negotiations with no end in sight: where is the Murray Darling Basin initiative leading us?" (2006) 23 Environmental and Planning Law Journal 386: V, SS

Selected Bibliography of Periodical Literature

Shearing, Susan, "Raising the boardroom temperature? Climate change and shareholder activism in Australia" (2012) 29 Environmental and Planning Law Journal 479: CC Sheehan, John and Small, Garrick, "Biota and the problem of property" (2005) 22 Environmental and Planning Law Journal 158: SD Shillito, Lewis, "Strata title Aboriginal towns? An alternative to the town-leasing proposal" (2007) 22 Australian Property Law Journal 201: TP Simpson, Amelia, "Heritage status in NSW: are private owners compensated adequately?" (1997) 14 Environmental and Planning Law Journal 243: I, TP Sinclair, David, "The Resource Management Act (1991) in public health law" (2003) New Zealand Journal of Environmental Law 275: XI Sindico, Francesco, "Ex-post and ex-ante (legal) approaches to climate ·change threats to the international community" (2005) New Zealand Journal of Environmental Law 209: CC Smith, Malcolm, "Revisiting old ground in light of new dilemmas: the need for Queensland to reconsider the regulation of assisted reproductive technologies" (2007) 7 Queensland University of Technology Law and Justice Journal 425: XIII, I, SD Sneddon, Andrew, "Aboriginal objections to development and mining activities on the grounds of adverse impacts to sites of spiritual significance: Australian judicial and quasi-judicial responses" (2012) 29 Environmental and Planning Law Journal 217: IS Sneddon, Andrew, "Development or sale of identified cultural heritage sites" (2004) 42 Law Society Journal 50: CC

Scherzer, Jorn and Sinner, Jim, "The public interest in resource rent" (2007) New Zealand Journal of Environmental Law 279: XI

Solomon, Emma, "Security for biodiversity offsets in New South Wales" (2011) 28 Environmental and Planning Law Journal 92: VIIl, I

Schorr, Jennifer L, "The Australian national representative system of marine protected areas and the marine zoning system: a model for the united States?" (2004) 13 Pacific Law Journal 673: VI, IX

Somerville, Royden, "A public law response to environmental risk" (2002) 10 Otago Law Review 143: XIII

Scott, Jennifer and Preston, Judith, "When is a climate change adaptation model good enough to inform public policy? Climate change adaptation risk management in local government" (2011) 16 LGLJ 152: CC, SD Scott, Shirley V, "Climate change and peak oil as threats to international peace and security: is it time for the security council to legislate?" (2008) 9 Melbourne Journal of International Law 495: CC Serdy, Andrew, "How long has the United Nations Fish Stocks Agreement been in force?" (2003) 34 Ocean Development and International Law 29: VI, IX, SD Serdy, Andrew, "See you in port: Australia and New Zealand as third parties in the dispute between Chile and the European Community over Chile's denial of port access to Spanish vessels fishing for Swordfish on the high seas" (2002) 3 Melbourne Journal of International Law 79: VI, IX, SS, SD Shearing, Susan, "Here today, gone tomorrow? Climate change and world heritage" (2008) 12 Australasian Journal of Natural Resources Law and Policy 161: CC Shearing, Susan, "The role of export credit agencies in environmental management: International benchmarks in ECA financing" (2013) 30 Environmental and Planning Law Journal 508: I cxvi

Sommer, Nicole, '"It's not my bag baby': responsibility for packaging and the National Packaging Covenant" (2006) 10 Australasian Journal of Natural Resources Law and Policy 219: IV Spencer, David, "Town Planning and mediation plus invoking the new Civil Procedure Act NSW (2005)" (2006) 17 Australasian Dispute Resolution Journal 125: TP Stanton, Jennifer, "Sustainable development of genetically modified organisms" (2006) New Zealand Journal of Environmental Law 1: SD Stanton, Keith M, "Strict environmental tort liability: defining damage" (2000) 8 Tort Law Review 99: XIV Stein, Paul L, "Are decision-makers too cautious with the precautionary principle?" (2000) 17 Environmental and Planning Law Journal 3: I, SD Stephens, Tim, "United Kingdom carbon emissions reduction legislation" (2007) 24 Environmental and Planning Law Journal 249: CT Stephens, Tim and Thomas, Laura, "The Environment Protection and Biodiversity Conservation Act: new prospects for effective implementation?" (2007) 18 Public Law Review 84: VIIl

cxvii

Selected Bibliography of Periodical Literature

Australian Environmental Law

Stephenson, Janet, "Recognising rangatiratanga in resource management for Maori land: a need for a new set of arrangements?" (2001) New Zealand Journal of Environmental Law 159: XIII

Tager, Jeremy, "Degraded site, degraded law" (2003) 28 Alternative Law Journal 188: IX

Stephenson, M A, "Resource development on Aboriginal lands in Canada and Australia" (2002) James Cook University Law Review 21: X, XI

Tal, Alon, "'Naturally quiet': towards a new legislative strategy for regulating air space above national parks in New Zealand" (2004) 10 Otago Law Review 537: ill, TP

Stewart, Brandon D, "Unjustly ignored: Revitalising the doctrine of waiver of tort in contaminated land litigation" (2012) 20 Tort Law Review 90: XV

Talbot, RN, "Development's increasing complexity in the bush: rural issues in the Land and Environment Court" (2006) 44 Law Society Journal 59: SD

Stewart, Isaac, "Reverse sensitivity: an environmental concept to avoid the undesirable effects of nuisance remedies" (2006) Canterbury Law Review 1: Xill

and Planning Law Journal 165: I, V, VI, IX

Stewart, Scott, "Native vegetation: a decade of growth?" (2000) 74 Law Institute

Tan, Poh-Ling, "Water law reform in NSW: 1995 to 1999" (2003) 20 Environmental

Journal 73: VIII

Tan, Poh-Ling, "An historical introduction to water reform in NSW: 1975 to 1994" (2002) 19 Environmental and Planning Law Journal 445: V

Stirling, Michaela, "New Zealand's offshore mining regime: rights and responsibilities beyond the 12-mile limit" (2002) New Zealand Journal of Environmental Law 139: VI, XI

Tan, Poh-Ling, "lrrigators come first: conversion of existing allocations to bulk entitlements in the Goulburn and Murray catchments, Victoria" (2001) 18 Environmental and Planning Law Journal 154: V

Stokes, Robert and Taylor, Mark, "Up the creek: what is wrong with the definition of a river in New South Wales?" (2005) 22 Environmental and Planning Law Journal 193: I, V, IX

Tan, Poh-Ling, "Conflict over water resources in Queensland: all eyes on the lower Balonne" (2000) 17 Environmental and Planning Law Journal 545: X, I, V

Stone, Christopher, "Should trees have standing? - towards legal rights for natural objects" (1972) 45 Southern California Law Review 450: SS

Tan, Poh-Ling and Jackson, Sue, "Impossible dreaming - does Australia's water law and policy fulfil Indigenous aspirations?" (2013) 30 Environmental and Planning Law Journal 132: IS

Storey, Matthew, "One mineral: many laws: the regulation of uranium mining in the Northern Territory" (2007) 26 Australian Resources and Energy Law Journal 290: SD Storey, Matthew, "From red-neck to green-black: mineral exploration and native title in the Northern Territory" (2003) 20 Environmental and Planning Law Journal 275: X, I, VI, XI Sullivan, Rory, "Greenhouse Challenge Plus: a new departure or more of the same?" (2006) 23 Environmental and Planning Law Journal 60: SD Sullivan, Rory, "Environmental management systems: theory, practice and implications for law and policy" (2001) 18 Environmental and Planning Law Journal 594: I, IX, VIII Sullivan, Rory, "The National Environment Protection Measure for the National Pollutant Inventory: legal, technical and policy issues" (1999) 16 Environmental and Planning Law Journal 365: I Susskind, Anne, "Green leases for new buildings, but what about the old?" (2008) 46 Law Society Journal 16: XII, I, TP Sutherland, Neil, "Stormwater management: an industry perspective" (2002) 8 Queensland Environmental Practice Reporter 30: V Suvantola, Leila, "Regulatory concerns regarding the NSW biobanking scheme" (2009) 13 Australasian Journal of Natural Resources Law and Policy 113: VIII Swayne, Nicola and Phillips, Angela, "Legal liability for carbon capture and storage in Australia: Where should the losses fall?" (2012) 29 Environmental and Planning Law Journal 189: CT, XIY, XVI Swayne, Nicola and Phillips, Angela, "Regulating coal seam gas in Queensland: Lessons in an adaptive environmental management approach?" (2012) 29 Environmental and Planning Law Journal 163: XI, I Szydzik, Melanie, "Neutral movement" (2009) 83 Law Institute Journal 77: II cxviii

Taubman, Aliza, "Protecting Aboriginal sacred sites: the aftermath of the Hindmarsh Island dispute" (2002) 19 Environmental and Planning Law Journal 140: X Taylor, Mark Patrick; Ives, Christopher, "Legislative and policy challenges for the protection of biodiversity and bushland habitats: An evidence-based approach" (2009) 26 Environmental and Planning Law Journal 35: VIII Terracall, Lucy, "Reaching for the stars" (2008) 82 Law Institute Journal 84: XII, TP Thiriet, Dominique, "The relocation of flying fox colonies in Queensland" (2005) 22 Environmental and Planning Law Journal 231: VIII Thom, Bruce, "Beach protection in NSW: new measures to secure the environment and amenity of NSW beaches'' (2003) 20 Environmental and Planning Law Journal 325: I, IX Thomas, Rod, "Compensation issues and the meaning of section 85 of the RMA" (2002) New Zealand Journal of Environmental Law 255: XIII, XI Thorpe, Amelia "Public participation in planning: Lessons from the green bans" (2013) 30 Environmental and Planning Law Journal TP, I Thorpe, Amelia and Graham, Kristy, "Green buildings - are codes, standards and targets sufficient drivers of sustainability in New South Wales?" (2009) 26 Environmental and Planning Law Journal 486: SD Towns, Carla, "The right of third party appeal in New Zealand land-use planning: an outsider's perspective" (2006) New Zealand Journal of Environmental Law 329: XIII,SS Tran, Christopher, "Using GATT, Art XX to justify climate change measures in claims under the WTO Agreements" (2010) 27 Environmental and Planning Law Journal 346: CC

cxix

Australian Environmental Law

Tranter, Mark, "Two towers: a comparison of the regulatory regimes which affect new electricity transmission lines and wind farms in Queensland" (2006) 23 Environmental and Planning Law Journal 351: I, SD, XI Tranter, Mark, "A question of confidence: an appraisal of the operation of the Gene Technology Act 2000" (2003) 20 Environmental and Planning Law Journal 245: SD Tribe, Laurence, "Ways not to think about plastic trees: new foundations for environmental law" (1974) 83 Yale Law Journal 1315: XIII Tridgell, Susan, "Evaluating the effectiveness of the Environment Protection and Biodiversity Conservation Act 1999 (Cth): 2008-2012" (2013) 30 Environmental and Planning Law Journal 245: CC, SD, XIII Troiano, Riccardo, "Climate change: Corporate liability, disclosure requirements and shareholders' remedies" (2008) 26 Company and Securities Law Journal 418: CC, XIV

Truswell, A Stewart, "Genetically modified plant foods: hopes and fears" (2002) Macquarie Law Journal 177: XIII, I, SD Tully, Stephen, "Like oil and water: a sceptical appraisal of climate change and human rights" (2008) Australian International Law Journal 213: CC, XIII Turner, Stephanie, "Coastal management and the environmental compensation challenge" (2000) New Zealand Journal of Environmental Law 181: VI, SD, IX Underdown, Jill, "'The most urgent thing': can the Water Act integrate with existing legislation to solve Queensland's water problems?" (2002) 8 Queensland Environmental Practice Reporter 25: V Van Kampen, Michelle and Welson, Elisabeth, "Greenhouse gas discharges - a matter of national interest" (2009) 28 Australian Resources and Energy Law Journal 121 cc Van Leuven, Carolyn, "New Zealand: changes afoot in the electricity, energy and resource sectors in New Zealand" (2009) 28 Australian Resources and Energy Law Journal 164: XI, SD Venuti, Stephanie "The disappearance of ecologically sustainable development within Australia's mining law framework" (2014) 31 Environmental and Planning Law Journal 64: SD Vince, Jenny, "Maori consultation under the Resource Management Act and the 2005 amendments" (2006) New Zealand Journal of Environmental Law 295: XI Vine, Megan, "Energy security, oil and the transport sector - is Australia's policy adequate, reliable and affordable?" (2012) 29 Environmental and Planning Law Journal 401: XI, SD Voigt, Christina, "Protection of indigenous forests on private land: role of local government" (2003) New Zealand Journal of Environmental Law 169: X, I, TP Voigt, Christina, "Environmental mediation and the Resource Management Act 1991: resolving resource management problems or comproinJsmg the environment?" (2002) 9 Auckland University Law Review 912: XIII Voigt, Christina, "The precautionary principle and genetic engineering in New Zealand: legal and ethical implications" (2002) New Zealand Journal of Environmental Law 43: VIII CXX

Selected Bibliography of Periodical Literature

Von Doussa, John, "Human rights and climate change: a tragedy in the making" (2008) 14 University of New South Wales Law Journal forum 75: X Walker, Andrew, "Forest reform in Victoria: towards ecologically sustainable forest management or mere greenwash?" (2004) 29 Alternative Law Journal 58: VIII Walker, Gillian, "Quiet achievements" (2003) 20 Environmental and Planning Law Journal 12: XIV Walker, Josie and Walmsley, Rachel, "Biobanking: certainty for developers, new hope for threatened species" (2008) 46 Law Society Journal 53: I, IX, VIII Walker, Paul, "Ecological sustainability under IPA: post Johannesburg Earth summit" (2002) 8 Queensland Environmental Practice Reporter 128: SD Wallace, Pip, "The nature of habitat" (2007) New Zealand Journal of Environmental Law 211: VIII Wallis, Lynley A and Wiltshire, Kelly D, "A history of Aboriginal heritage protection legislation in South Australia" (2008) 25 Environmental and Planning Law Journal 98: X Walrut, Bernard, "The South Australian Aquaculture Act 2001" (2003) 20 Environmental and Planning Law Journal 30: V, IX Walrut, Bernard, "The legislative powers of the Commonwealth and States affecting aquaculture" (2002) 19 Environmental and Planning Law Journal 415: V, IX, SD Walrut, Bernard, "The public rights to use the sea and rivers" (2003) 20 Environmental and Planning Law Journal 423: V, IX Walsh, Simon, "Making the switch: you don't need to choose between saving money and saving the environment" (2009) 83 Law Institute Journal 80: SD Walton, Michael, "The 'not so' Integrated Development Assessment System: is IDAS really a 1-stop shop?" (2005) 11 Queensland Environmental Practice Reporter 66: SD Walton, Michael, "The relationship between native title and Queensland planning legislation: The application of the future acts regime to major land use controls" (2013) 18 LGLJ 125: IS Warner, Robin, "Preserving a balanced ocean: regulating climate change mitigation activities in marine areas beyond national jurisdiction" (2007) Australian International Law Journal 99: CC, IX Warnock, Ailsa Ceri, "Sustainable construction in New Zealand" (2005) New Zealand Journal of Environmental Law 337: SD Watson, Katherine, "The new regulatory challenge: designing optimal environmental regulation for small to medium sized enterprises" (2005) 22 Environmental and Planning Law Journal 350: XIV Wawryk, Alexandra, "Planning for wind energy: controversy over wind farms in coastal Victoria" (2004) 9 Australasian Journal of Natural Resources Law and Policy 103: SD Wawryk, Alexandra S, "Legislating for offshore wind energy in South Australia" (2011) 28 Environmental and Planning Law Journal 265: RE, SD Webb, Rachael, "Victoria's Native Vegetation Framework: achieving 'net gain' at the urban growth boundary?" (2009) 26 Environmental and Planning Law Journal 236: VIII cxxi

Australian Environmental Law

Webb, Rachael, "Water management and coal mining industry in New South Wales" (2008) 25 Environmental and Planning Law Journal 272: I, IV, SD Webb, Raelene, "Nature reserves, national parks and native title after Ward" (2002) 21 Australian Mining and Petroleum Law Journal 282: X Webster, Adam; Williams, John M, "Can the High Court save the Murray River?" (2012) 29 Environmental and Planning Law Journal 281: V Weekes, Deborah, "Regulation of vegetation clearing increases" (2002) 8 Queensland Environmental Practice Reporter 103: SD Wheen, Nicola R, "Foul play? Government and the SILNA forests" (2002) New Zealand Journal of Environmental Law 279: VIII White, Michael, "Pacific Adventurer oil spill 2009: Lessons past and future" (2013) 87 Australian Law Journal 320: VI, IX White, Rob, "Stifling environmental dissent on SLAPPs and Gunns" (2005) 30 Alternative Law Journal 268: XIV Wilder, Martijn, "A step ahead of Kyoto? The establishment of an Australian carbon trading market" (2000) 1 International Trade and Business Law Bulletin 23: CT, CC, SD Wilder, Martijn, "The Kyoto Protocol and early action" (2001) 24 UniversihJ of New South Wales Law Journal 565: CC Wilder, Martijn, "The international movement of hazardous waste: making a permit application under Australian law" (1998) 17 Australian Mining and Petroleum Law Journal 391: XIV, I, VII

Selected Bibliography of Periodical Literature

Wylynko, Brad, "Implementation: contaminated sites legislation" (2006) 33 Brief 12: VII Wylynko, Brad, "New contaminated sites legislation for Western Australia" (2003) 30 Brief 29: VII Wyman, Lisa, "Acceptance of the precautionary principle: . Australian v international decision-makers" (2001) 18 Environmental and Planning Law Journal 395: I, IX, VIII Xanthaki, Alexandra, "Land rights of indigenous peoples in South-East Asia" (2003) 4 Melbourne Journal of International Law 467: X, IS Young, Margaret A, "The primacy of development: environmental impact assessment in Indonesia and Australia" (1999) 1 Australian Journal of Asian Law 154: I, SD Young, Tom, "A pub with no beer" (2002) 19 Environmental and Planning Law Journal 403: I Young, Tom, "Putting sustainability into practice: the Queensland fisheries management debate" (2001) 18 Environmental and Planning Law Journal 381: SD Zeller, Bruno, "Carbon reduction schemes and the energy sector: A bottom up approach?" (2011) 28 Environmental and Planning Law Journal 332: CT, RE Zhang, Hao, "Design elements of emissions trading regulation in China's pilot programs: Regulatory challenges and prospects" (2013) 30 Environmental and Planning Law Journal 342: CT

Williams, Claire, "Wild law in Australia: Practice and possibilities" (2013) 30 Environmental and Planning Law Journal 259: SS Williams, Ian, "RMA participation pitfalls" (2006) New Zealand Law Journal 25: XI Williams, Ian, "The Waitaki River" (2005) New Zealand Law Journal 177: XI Williams, I H, "The Resource Management Act 1991: well meant but hardly done" (2000) 9 Otago Law Review 673: XI Williams, Peter, "Use of transferable development rights as a growth management tool" (2004) 21 Environmental and Planning Law Journal 105: I Williams, Peter, "The Land and Environment Court's planning principles: relationship with planning theory and practice" (2005) 22 Environmental and Planning Law Journal 401: I Wulf, Peter, "Offshore petroleum and the Environment Protection and Biodiversity Conservation Act 1999 (Cth): consideration of 'all adverse impacts"' (2005) 22 Environmental and Planning Law Journal 296: IX Wulf, Peter, "Diffuse land-based pollution and the Great Barrier Reef World Heritage Area: the Commonwealth's responsibilities and implications for the Queensland sugar industry" (2004) 21 Environmental and Planning Law Journal 424: VI, IX Wulf, Peter, "Court-ordered mediation in the Planning and Environment Court: does it assist self-represented litigants?" (2007) 18 Australasian Dispute Resolution Journal 149: XIII Wulf, Peter, "Indigenous commercial fishing rights in Queensland: when is commercial 'traditional'?" (2006) 23 Environmental and Planning Law Journal 433: X cxxii

cxxiii

PART I THE NORMATIVE CONTEXT OF ENVIRONMENTAL LAW

1.

The Nature of Environmental Law .............................................................................. 3

2. The Ethical Dilemmas of Environmental Law ..................................................... 33 3. The International Framework of Environmental Law .................................... 59

4. The Constitutional Foundations of Environmental Law ................................ 87

CHAPTER 1 The Nature of Environmental Law

INTRODUCTION Environmental law is one of those areas of the law that is identified by its underlying philosophy and by its subject matter rather than by the nature and source of the rights and obligations that sustain it. This does not mean that an analysis of environmental law can avoid a consideration of legal doctrine. This is essential simply because the nature, source and administration of rights and obligations are responding to the emergence of sustainability as the fundamental grundnorm of the environmental legal system. Environmental law has increasingly been characterised over the last decade or so by a range of evolving concepts and doctrines relevant to achieving the objectives of managing the environment. The legal framework within which the management of the environment takes place comprises a complicated set of interlocking rights, duties, powers and liabilities of diverse kinds. These interlocking legal arrangements are emerging in this way as a system. As a system these legal arrangements do no more than respond to an equally complicated set of individual, social and natural relationships. Management and environment are essentially neutral expressions. So the management of the environment is a function strictly devoid of value. The values driving environmental management come from somewhere else. For example, the need for its protection. This points to a particular perspective for managing the environment and it is a matter more of public or collective than private or individual interest. As such it presents major challenges for a legal system. But it is more than that. Is there, for example, a fundamental right to an environment of a particular quality? This requires a philosophical as well as a legal response. It has been suggested that "the novelty of the environmental fundamental right" - if there is one - lies "in its new level of complexity which is characterised by the fact that environmental protection demands the setting of priorities that are essential to deal with the complexity of the underlying problems it seeks to address". 1 The law traditionally eschews the setting of priorities: it much prefers the setting of standards. The complexity of the law, nevertheless, is merely a reflection of the complexity of the environment. The unravelling of the law is as challenging as unravelling the elements of the environment. This does not take us very far. The expressions environment and law have different meanings in different contexts. Since the medium of law is language, it is critical to identify not only the function of the legal system but also to determine as accurately as possible - a task of some difficulty - what is the environment that is managed within this legal framework. [1.10]

Karl-Heinz Ladeur, "Environmental Constitutional Law" in Gerd Winter, European Environmental law - a Comparative Perspective (Dartmouth Publishing, Aldershot, 1996) p 19. [1.10] 3

ENVIRONMENT Its original meaning The ongms of the word environment itself are French. These indicate a geographical connection. Perhaps for these reasons it has been suggested that " in its most general sense the word environment refers to the area that surrounds or circumscribes human or non-human beings". 2 The reference to area suggests a locational restriction and this may be physical or biological. Yet the restriction upon the location is very much a matter of circumstances. In recent years, however, the meaning of the word has expanded to include a wide range of relationships within a system. In other words:

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The environment thus is now considered to be an organised, dynamic, and evolving system of natural (ie physical, chemical, biological) and human (ie economic, political, social and cultural) factors in which living organisms operate or human activities take place, and which has a direct or indirect, immediate or long term effect or influence on these living beings or on human actions at a given time and in a circumscribed area. 3

Some have argued that this extended meaning is so general and so imprecise as to be of little use - certainly for a discipline such as law which seeks to embrace certainty and precision. 4 Although the word is general - deliberately so - this has not prevented its use and application in myriad sets of circumstances. There are other words that are close to synonyms for environment in this wide sense. For example, nature. More importantly, there are the three words with one common element: ecosystem, ecology and economy. The common element is oikos: the Greek word for house. House has a locational connotation but its use in the English language has in practice been extended beyond that. It is thus similar to environment. However, it is the original meaning of these words that is significant. Ecosystem, again in a wider and strictly inaccurate sense, describes the extended and non-locational or non-specific concept of environment. Ecology is the study of animals and plants leading to knowledge about them. Economy is the management of a household or in more contemporary usage the stewardship of resources. What is important about all of these words, including environment itself, is that they are intrinsically neutral in the sense that they are descriptive rather than normative. In other words they are devoid of values.

Its contemporary meaning Contemporary usage is somewhat different. Arguably the adjectives environmental and economic contain within them statements, perhaps implied, of a value. Indeed environmental factors are often distinguished from economic factors and these are often seen to be, at least potentially, in conflict with each other. This causes problems for the law simply because the functions of a legal system include the setting of standards and the recognition and protection of

values. While these values may be described for certain purposes as environmental, this has the effect of ascribing to the word environment a quality that is not intrinsically there. Much then depends upon the words used in a legal system about the environment. If it is one of the functions of a legal system to set values, then these values are a reflection of the priorities of society at any given moment of time. And these vary enormously from generation to generation. If environment is perceived as a location, there are two perspectives. The environment is the place out of which resources are taken and the place into which waste is discharged. This applies as much to the atmosphere, the biosphere and the hydrosphere as it does - more traditionally - to the geosphere. What are the implications of the different perspectives? They may be economic, ecological or cultural, or all three. Some societies have seen the environment as a resource to promote the material well-being of that community. Other societies have perceived the environment as a source of spiritual fulfilment. In a sense, therefore, the history of the environment has been a dialectic of human values. Indeed, as Max Nicholson has written: Man has emerged from an animal to a human state largely through an age long, often unspoken, dialogue and a running struggle with his natural environment. That environment cannot be regarded as just an external framework, still less as the mere backdrop of city imaginations. Its pressures and its challenges have become built into man's bodily and emotional make up. 5

And it was Rachel Carson who a few years earlier had drawn specific attention to the damage caused to ecosystems by human activities: During the past quarter-century this power has not only increased to one of disturbing magnitude but it has changed in character. The most alarming of all man's assaults upon the environment is the contamination of air, earth, rivers, and sea with dangerous and even lethal materials. This pollution is for the most part irrecoverable; the chain of evil it initiates not only in the world that must support life but in living tissues is for the most part irreversible. 6

Statements such as these clearly ascribe value to the environment. Human beings, either as individuals, as groups or as communities, may well respond to these challenges. Some societies have responded through their institutions. Others have not. If the recognition and protection of values are to be enforced or sanctioned, then society must create institutions and mechanisms - however informal - to do so. Clearly one of these is law. But what are its functions in relation to this?

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2

3 4

JG Vaillancourt, "Environment" in Robert Paehlke (ed), Conservation and Environmentalism: an Encyclopaedia (Garland Publishing, New York and London, 1995) p 217. JG Vaillancourt (1995) p 218. See also the discussion about "fragile values" in L H Tribe, "Ways not to think about plastic trees: new foundations for environmental law" (1974) 83 Yale Law Journal 1315 at 1317-1322.

4 [1.20]

I CH 1

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

lAW The nature of a law [1.40]

The law is an artificial creation of the human intellect whether a rule of law

is a recognised custom handed down by word of mouth or whether it assumes a

written form such as a constitution or a statute. For the most part contemporary society in a jurisdiction like Australia tends to recognise or create rules of law in 5 6

Max Nicholson, The Environmental Revolution (Penguin, Harmondsworth, 1972) p 21. Rachel Carson, Silent Spring (Penguin, Harmondsworth, 1965) p 23. [1.40] 5

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

written form even where its function is to recognise and give effect to customary law. In any event the traditional function of a legal system has been to set standards of human behaviour and to set procedures and increasingly standards, either personal or corporate, of decision-making by any person or institution. The values of society have emerged only indirectly through these functions. However, the function of the law in relation to the environment requires a recognition of the special features of environment and, in particular, a recognition of the damage to the environment caused by human activities. The causes and effects of climate change, for example, are proving to be a major challenge for the law. It is thus the nature of environment and environmental damage that has over the last few decades forced legal systems to introduce rules, standards, procedures and sanctions appropriate to the subject matter of environment. A legal system has traditionally been structured around four foundational concepts: • powers; • liabilities; • rights; and • duties. A power is the capacity of an individual or an institution to engage in behaviour or decision-making. A liability is the susceptibility of a person or an institution to be affected by the exercise of a power by some other person or institution. A right is an acknowledgement that the behaviour or decision-making of a person or an institution complies with identifiable standards. A duty is the imposition upon a person or an institution of a requirement to behave or make decisions in accordance with these standards. An example will clarify these concepts. Take the power of an owner of land to use the land for the purposes that best enhance the interests of the owner. Other members of the community, including a neighbour of the owner of the land, may be affected by the exercise of that power by the owner. This constitutes from their perspective a liability. However, the owner of the land may be expected to comply with certain minimum standards of behaviour or decision-making in the way that the power to use the land is exercisable. For example, the owner of land must not use the land in such a way that unreasonably interferes with the way in which other landowners may reasonably use and enjoy their land. This standard of behaviour becomes a right able to be enforced by the other owners of land. It also becomes, reciprocally, a duty upon the first owner of the land not to use their land in a way which does not comply with this standard. What is significant about this set of legal concepts is the recognition afforded by them to values that are inherently connected with individuals and institutions: that is, private interests. The environment, arguably almost by definition, comprises an interest wider and more extensive than that of the individual or the institution: that is; the public interest. This is one of the reasons why the attribution of values to the environment cannot comfortably or perhaps even at all be accommodated within this traditional set of legal concepts. 7 7

This is discussed further in Chapter 2.

6 [1.40]

I CH 1

The complexity of environmental law [l. 50) If the law recognises and protects environmental values in various ways, it

is the function of the political process to decide what are these values and to determine what priority is to be given to them. The management of the environment - and in this context a neutral expression like management is deliberately used - is a multi-disciplinary process that involves the accommodation of a wide range of interests - private and public or individual and collective. While this may lead to conflict, it is arguably one of the functions of a legal system to ensure that any such conflict is resolved according to principles acceptable to the community in consequence of the political process. The complexity of environmental management is thus reflected in the complexity of environmental Jaw.

The range of interests commentator on environmental law in .the United States of America has analysed this complexity from three perspectives. 8 These have been described as different interests, different results and different lenses. 9 The first is an acknowledgement of the large number of individuals, institutions and organisations claiming a legitimate interest in the management of the environment. In Australia, for example, there are:

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• the three levels of government - Commonwealth, State and local; • organisations in the private, industrial and commercial sectors such as mining companies, agriculturalists and pastoralists, land developers, and energy producers and distributors; • individual members of the community who use the goods and services produced by the public or private sector, such as the consumers of motor vehicles, water and electricity; • non-government organisations devoted to developing, conserving or protecting the resources of the environment; • individual members of the community interested in protecting their own interests; and • individual members of the community interested in protecting the environment. Just as important are the legislatures and the courts in Australia. Some courts, like the Land and Environment Court in New South Wales and the Planning and Environment Court in Queensland, make decisions on the merits of matters involving the environment, while the function of Supreme Courts and the High Court of Australia is confined to ensuring the legality of decisions and thus avoiding the merits of decisions.

The range of outcomes The notion of different results is founded upon the dynamism of environmental law. In other words, environmental law changes so rapidly that it

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8

RF Blomquist, "The Beauty of Complexity" (1988) 39 Hastings Law Journal 555 and "Clean New World: Toward an Intellectual History of American Environmental Law 1961-1990" (1990) 25 Valparaiso University Law Review 1.

9

RF Blomquist (1988) at 567-570 and (1990) at 5-8. [1.70] 7

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

is difficult if not impossible to determine whether the system results in good, bad or indifferent environmental management. Indeed it may be difficult to determine what the system is attempting to achieve by way of an outcome or outcomes. Certainly environmental law in Australia has ebbed and flowed, sometimes quite dramatically, over the last two or three decades. However, in Australia it has probably reached a stage of relative maturity and stability. The principle lending potential coherence and unity to the system is sustainability: sometimes called sustainable development or ecologically sustainable development. This is not to suggest that the principle of sustainability is universally accepted, clear in concept or enforceable in practice. Yet sustainability in one form or another is the fulcrum around which environmental law is evolving and it is the nature of sustainability that is forcing environmental law to adopt new approaches and new mechanisms.

The range of perspectives Then there are different lenses. These are simply the different perspectives according to which the objectives of the environmental legal system can be seen. The two perspectives are absolute rights and utilitarianism. If an environmental right - a difficult concept in itself - is recognised, then nothing else is relevant. In particular, issues such as cost, efficiency, or practicability are not matters for consideration. There have been instances - rather few in number - that have adopted this approach in Australia. Much more common, therefore, is the utilitarian approach to the management of the environment. If the utilitarian approach underpins the system of environmental law in Australia, then decisions are made so that the welfare of the community at large can be achieved in the circumstances of the case. If this is the position in Australia, then it is indeed similar to the position in the United States of America described in these words. "We come full circle, then, to the roots of American environmental law: the balancing of equities based on the polestar of what is reasonable under the circumstances". 10 [1.80)

Responsibility for the environment If environmental law is founded upon a utilitarian approach and if environmental management is driven by sustainability, then this poses considerable challenges for the traditional matrix of powers, liabilities, rights and duties. If the management of the environment is to be sustainable, then in legal terms this does not comprise a power, a liability, a right or a duty. This is not to suggest that sustainability may not be incorporated within the legal system in the form of one or other of these mechanisms. It can. Indeed sustainability is, in one or other of a series of different forms, an element of the Australian environmental legal system. The law has been uncomfortable with the idea of sustainability as an outcome - or any other outcome for that matter - that is enforceable. But this may be changing. [1.90)

The doctrine of utilitarianism in the management of the environment has philosophical as well as legal implications. It has been suggested that there are three "alternative normative structures for coping with issues of the international environment". 11 These are: • a system of shared rights; • a system of shared duties; and • a system of shared responsibilities. While the analysis in support of this suggestion has focussed upon the international environment, it is also relevant nationally and no doubt locally. A system of shared rights gives to each nation and to each resource owner absolute and total control over what happens within national boundaries or ownership boundaries. A system of shared duties places specific duties upon each nation and each resource owner. A system of shared responsibilities specifies the outcomes that all nations and resource owners are expected to achieve. It is the concept of shared responsibilities that is important in this context. 12 A regime of shared responsibilities, it has been stated, is "outcome-oriented". More particularly: What duties demand of agents are specific performances. What responsibilities demand of agents are specific results, leaving the agents themselves to choose which among various possible, morally permissible actions might best achieve the mandated results. Under a system of duties, an agent is morally off the hook once he has performed precisely those actions demanded of him, even if the overall results are utterly catastrophic. A system of responsibilities does not let an agent off the hook until he has actually accomplished the prescribed ends, through some judicious choice among permissible means. 13

The management of the environment in a sustainable way or ecologically sustainable development - however described - is an instance of a shared responsibility. Responsibilities must therefore be added to the matrix of powers, liabilities, rights and duties as the analytical framework within which environmental law should be reviewed.

The structure of environmental law The structure of environmental law is a reflection of the functions that it performs. Its functions have changed over the years. Consequently a brief historical excursion helps to put the contemporary arrangements in perspective. For the most part - with the principal exception of the criminal law - the common law was concerned to protect private rights through a set of liabilities for infringement of these rights. The owner of land was entitled to use the land and its associated resources as the owner saw fit subject only to the limitations imposed by the common law in recognition of the same rights enjoyed by other land owners. The public interest in the quality of the environment did not emerge in any significant way until towards the end of the 19th century. The control of polluting activities was first driven by concerns about public health and only

[1.100)

11

12

10

RF Blomquist (1988) at 570.

8 [1.80]

I CH 1

13

Robert Goodin, Utilitarianism as a Public Philosophy (Cambridge, Cambridge University Press, 1995) p 308. Robert Goodin (1995) p 313. Robert Goodin (1995) p 313. [1.100] 9

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

much later by concerns about the environment. About the end of the 19th century the qualities of the natural environment were seen to be important and hence the move towards the creation and management of areas now described as national parks. By the beginning of the 20th century there had therefore emerged the three traditional functions of the environmental legal system. First, the facilitation of the use and development of the environment as a natural resource; second, the protection of the environment from environmentally damaging activities; and third, the conservation of the natural environment on an ongoing management basis. Increasingly during the 20th century there was a polarisation of these functions. On the one hand the need to develop natural resources for economic and social purposes and on the other hand the need to protect and conserve the environment for ecological as well as social purposes. This sense of polarisation within the legal system intensified towards the end of the 20th century. The law was seen to move in two quite distinct directions - development of natural resources and environmental conservation and protection. These were often seen to be in conflict. Sustainability was seen to be the answer to this potential conflict. The emerging strategy was for development to be ecologically sustainable, socially sustainable and economically sustainable. We shall examine this in more detail later 14 but let this suffice for the moment. As sustainability became the driving force, so responsibility for the environment became an element of the normative framework within which ecologically sustainable development would take place. It has emerged both internationally and potentially nationally as a doctrine that might be described as the doctrine of common but differentiated responsibilities. Each and every person and institution has a responsibility to seek to achieve ecologically sustainable development but in ways and according to means that reflect their own differentiated circumstances. Accordingly, everyone is involved - legislatures, the executive, the judiciary, the private industrial and commercial sectors as well as individuals - but each in their own ways. The traditional structure of the legal system as a set of powers, liabilities, rights and duties has probably proved to be inadequate. Certainly there are private rights and private duties. But public rights and public duties have emerged much more strongly within the system. It involves, of course, a balancing of private interests and the public interest. But ecologically sustainable development is concerned as much with what is going to happen in the future as with what has happened in the past. Traditionally the law has been comfortable adjudicating upon disputes about what has happened in the past. Less so about prescribing what is desirable for the future. But ecologically sustainable development involves both of these elements. What is emerging - as we shall see in detail in the later chapters - is a structure that comprises several elements. These are: • a framework of normative values; • competence rules; • strategic rules; • regulatory rules; 14

See Chapter 7.

10 (1.100]

I CH 1

• liability rules; • market rules; • methodological rules; • planning rules. The normative framework may find its values in international law and policy or in constitutional or statutory arrangements within a state. In Australia environmental law is influenced by international law and policy. Constitutional arrangements contribute relatively little. And there is no charter of environmental rights and obligations in Australia. So the environmental legal system in Australia is a matrix of the other elements of the system. Competence rules describe those persons and institutions who may undertake activities or make decisions in relation to the environment. Strategic rules point out the substantive direction of decision-making and of operational activity. Regulatory rules describe what cannot be done and what can be done through the involvement of the executive branch. Liability rules describe what can be done and what cannot be done in accordance with clearly stated and defined sets of rights and duties. Market rules provide for the administration of existing markets, or the creation of new markets when economic instruments of this kind are seen to be a way of managing the environment. Legal rules regulate not only behaviour but also how decisions are made in relation to the environment. Environmental law is as much concerned with what is proposed to happen in the future as with what has happened in the past. The prescription of outcomes for the future is a particular challenge for the environmental legal system. It involves the creation of rules that state the purposes or objects to be achieved and the intellectual processes according to which decisions are made about these purposes or objects. These rules we describe as methodological rules for decision-making. They are becoming not only a critical but also a controversial element of the environmental legal system. These rules are stated in legislation or in an instrument made in accordance with the relevant legislation. These instruments may be, for example, land use planning schemes, water resource plans, nature conservation plans or fisheries management plans. In some respects these rules may be substantive while in other respects they may be procedural. However, methodological rules are often a combination of both - to the extent that they answer the questions what as well as how. These methodological rules perform different functions. Some may be described as purposive. Purposes or objects may be described. In some cases, obligations are created in relation to the achievement of these purposes. Others may be described as deliberative. These state either the permissive or mandatory matters that are part of a decision-making process. These rules are structured in a variety of different ways. Much therefore depends upon their structure, their form and their language. These rules have been subjected increasingly over recent years to judicial analysis. For practical as well as theoretical purposes an understanding of these rules has become vital. All of these rules perform different functions within the environmental legal system. Competence rules enable decisions to be made. Strategic, regulatory, liability, market and planning rules limit decision-making. These rules focus upon matters of substance or of administrative procedure. Methodological rules are (1.100] 11

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

fundamentally different. Their focus is intellectual. Some of these rules are capable of enforcement while others are not. But each impacts on the other. Legal rules have been described as those rules that are enforceable in the traditional sense and those that are not so enforceable as paralegal rules. Consequently paralegal rules, for example strategic rules, inspire and inform how legal rules, for example regulatory rules, are given effect. It is unlikely that any one classification or categorisation of rules of law will be satisfactory or acceptable. But an analytical framework of some kind is necessary to ensure some order in the process. This classification is no more than one analytical framework according to which the several components of the environmental legal system may be reviewed. Moreover, the environmental legal system is so complex and so diverse that any point of reference can be analysed contrapuntally against another point of reference. The environmental legal system in Australia, it is suggested, seems to be evolving in accordance with this structure.

ENVIRONMENT IN INTERNATIONAL LAW

Its meaning for liability rules It is time now to leave the concepts of environment and of law and to examine how legal systems have responded. Although international law has increasingly recognised the need to protect environmental values, 15 it has not until recently provided an interpretation of the expression environment itself. Significantly, one of the earliest statements about international responsibility for environmental harm made no reference to the environment. The principle was stated in these words in the Trail Smelter Arbitration in 1941:

[1.110)

No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. 16

This does no more than reflect traditional liability in nuisance for injury caused to property or to a person or in this case to the territory of another. It represents, unsurprisingly, a very narrow concept of environment based on physical location. A similar approach was used in some of the earlier conventions about environmental protection. Thus the operator of a nuclear installation is liable for loss of life, personal injury, loss of property or damage to property resulting from radioactivity in a nuclear installation. 17 The liability of ship owners for oil pollution damage goes a little further. It arises in relation to pollution damage caused in the territory, in the territorial sea or in the exclusive economic zone of a

I CH 1

contracting state. 1 8 For this purpose, pollution damage is loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship. 19 But any liability for damage to the environment is limited, since "compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken".

20

Its meaning for protection rules The Convention on the Law of the Sea 1982 has adopted a different approach. Part XII is concerned directly with the protection and preservation of the marine environment. The right of a state to exploit its marine resources is limited by its 21 related duty to protect and preserve the marine environment. However the operative provisions of the convention are directed towards the control of pollution rather than the protection of the environment in general. The form of obligation is not liability for damage as in the case of nuclear installations and vessel sourced oil pollution. It is, rather, the creation of a duty placed upon states to adopt laws and regulations to prevent, reduce and control pollution of the 23 marine environment from land-based sources 22 and by dumping. It is a duty to take measures with a particular outcome: an example of a shared responsibility. It amounts to a set of regulatory rules. This approach has become the paradigm for later examples of international responsibilities. For example, states that are parties to the Convention for the Protection of the Ozone Layer 1985 are under a duty to take appropriate measures to protect human health and the environment against adverse effects resulting or 24 likely to result from human activities that modify the ozone layer. Significantly the duty is linked to the achievement of an outcome - the protection of human health and the environment - and it is for the relevant states to take whatever means are appropriate to achieve this outcome. The Montreal Protocol has gone further by placing specific duties upon states to achieve certain standards of emissions of ozone depleting substances. 25 While it must be emphasised that

[1.120)

18

19

International Convention on Civil Liability for Oil Pollution Damage 1992, Art ll(a). See P W Birnie and A E Boyle, Basic Documents on International Law and the Environment (Oxford,

Clarendon Press, 1995) pp 91-106 for the consolidated text of the convention. See also [1984] ATS No 3, [1995] ATS No 2 and [1996] ATS No 2. International Convention on Civil Liability for Oil Pollution Damage 1992, Art 1(6)(a), first element.

20

International Convention on Civil Liability for Oil Pollution Damage 1992, Art 1(6)(a), proviso.

21 22

United Nations Convention on the Law of the Sea 1982, [ 1994] ATS No 31, Arts 192 and 193. For the text see (1982) 21 ILM 1261. United Nations Convention on the Law of the Sea 1982, [ 1994] ATS No 31, Art 207(1).

15 16

This is discussed further in Chapter 3.

23

United Nations Convention on the Law of the Sea 1982, [1994] ATS No 31, Art 210(1).

United States of America v Canada ( 1941) 3 RIM 1905. See (1941) 1 International Environmental

24

17

Vienna Convention on Civil Liability for Nuclear Damage 1963, Arts l(l)(k) and 11(1). For the text

Vienna Convention for the Protection of the Ozone Layer 1985, [1988] ATS No 26, Art 2(1). For the text see (1987) 26 ILM 1529. Montreal Protocol on Substances that Deplete the Ozone Layer 1987, [1989] ATS No 18, Arts 2A to 2H. For the original text see (1987) 26 ILM 1550.

Law Reports 231 at 310. see (1963) 2 ILM 727. 12 (1 .110]

(1.120] 13

The Na cure of Environmental Law

PART I The Normative Context of Environmental Law

these obligations are undertaken voluntarily by states, they are nevertheless in the form of rules of law that are capable - at least in theory - of being enforced. 26 Perhaps the best example of these contemporary approaches is the Convention on Climate Change 1992 coupled with the more specific obligations in the Kyoto Protocol. The convention talks not about environment but about the climate system. This means the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions. 27 Nothing could be wider than this concept even if human beings were left out of account. However, they are not left out of account since the purpose of the arrangements is to enable ecosystems to adapt to climate change, and climate change is a change of climate directly or indirectly attributable to human activity. 28 In addition, the convention is underpinned by three instrumental concepts: its objective, 29 the principles that guide the achievement of the objective, 30 and the commitments or duties imposed upon the states that are parties to the convention. 3 1 It is this specific reference to the objective and to the principles that places the convention at the vanguard of formal conceptualisation of legal instruments. The generality of the objective, the principles and the commitments in the convention are supported by the greater specificity of the obligations linked to standards in the Kyoto Protocol. 3 2 This is a set of strategic rules and regulatory rules combined.

Its meaning for planning rules Environmental impact assessment as an instrument of planning is an aid to decision-making. While the legal system might impose a duty to undertake an environmental impact assessment, and failure to do so may attract certain sanctions, there are no liabilities associated with environmental impact assessment in the sense discussed in the preceding paragraphs. Perhaps, therefore, because of its nature, the Convention on Environmental Impact Assessment in a Transboundary Context 1991 attracts indirectly an interpretation of environment through the definition afforded to impact. For this purpose, impact is stated to mean: [1.130)

Any effect caused by a proposed activity on the environment including human health and safety, flora, faun a, soil, air, w a ter, climate, landscape and historical monuments

I CH 1

or other physical s tructures or the interaction among those facto rs; it also includes effects on cultural heritage or socio-economic condition s resulting fro m altera tions to 33 those factors.

The concept of environment is thus wide and includes physical, biological, social and cultural factors. The notions of interrelationship and interaction between the various elements of environment are replicated in the Directive of the Council of the European Communities on environmental impact assessment. While it does not interpret environment as such, it indicates the factors affected by development proposals that are to be assessed: • human beings, fauna and flora; • soil, water, air, climate and the landscape; • the interaction between the factors mentioned; and • material assets and the cultural heritage. 34 It is thus the nature of environmental impact assessment that justifies the wide concept of environment rather than a narrower meaning for the purposes of pollution control.

A focussed meaning There is one convention that provides a specific interpretation of the word environment. It is the Convention on Civil LiabilihJ for Damage Resulting from Activities Dangerous to the Environment 1993 adopted not by the United Nations but by the Council of Europe. It imposes a liability upon a person who exercises control of a dangerous activity. 35 Liability arises in relation to damage 36 and the concept of damage includes loss or damage by impairment of the environment. 37 However, there is a limit to the compensation payable for impairment of the environment. Except for compensation for loss of profit from impairment of the environment, compensation is limited to the costs of measures of reinstatement actually undertaken or to be undertaken. 38 For all of these purposes the expression environment is stated to include:

[1.140)

• natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors; • property which forms part of the cultural heritage; and

26

The obligations placed upon Australia by the Paris Convention for the Protection of the World Cultural and Natural Heritage 1972, [1975] ATS No 47, (1972) 11 ILM 1358 enabled the Commonwealth Parliament to enact the World Heritage Properties Conservation Act 1983 (Cth) in exercise of the external affairs power: see Commonwealth v Tasmania (1983) 158 CLR

33

Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1991, Art 1(vii). For the text see (1991) 30 ILM 802.

34

Directive of the Council of the European Communities on the Assessment of the Effects of Certain Public and Private Projects on the Environment 1985 (85/337/EEC), Art 3. See the

1.

27

United Nations Framework Convention on Climate Change 1992, [1994] ATS No 2, Art 1(3). For

the text see (1992) 31 ILM 849. 28

United Nations Framework Convention on Climate Change 1992, [1994] ATS No 2, Art 1(2).

29

United Nations Framework Convention on Climate Change 1992, [1994] ATS No 2, Art 2.

Official Journal of the European Communities No L175/40. 35

Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993, Art 2(5). For the text see (1993) 32 ILM 1228. Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993, Arts 6 and 7.

30

United Nations Framework Convention on Climate Change 1992, [1994] ATS No 2, Art 3.

31

United Nations Framework Convention on Climate Change 1992, [1994] ATS No 2, Art 4.

Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993, Art 2(7)(c), first element.

32

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change, Arts 2 and 3. For the text see (1998) 37 ILM 32.

Lugano ConJention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993, Art 2(7)(c), proviso.

14 [1 .130]

37

[1 .140] 15

PART I The Normative Context of Environmental Law The Nature of Environmental Law

I CH 1

• the characteristic aspects of the landscape. 39

Bulgaria

It must be emphasised, however, that, despite the generality of this interpretation,

damage to the environment is not in itself compensable. Liability to compensate is limited to the costs of measures of reinstatement. Thus, while international law is undoubtedly concerned with the protection of the environment, it has approached it for the most part by avoiding not only the use of the word environment but also the provision of an interpretation.

ENVIRONMENT IN NATIONAL LAWS United States of America [1.150] While international law may have avoided the need to produce definitive interpretations of environment, national legal systems, no doubt because of their greater susceptibility to enforcement, have attempted to do so. There are many different approaches. Interestingly, one of the historically most significant of contemporary environmental statutes - the National Environmental Policy Act 1969 of the United States of America - contains no interpretation of environment. However, the declaration of policy in the statute 40 makes clear the broad scope and reach of the mechanisms created by the statute including, most importantly, the requirement for what is now known as an environmental impact statement. Strictly it arises in the context of proposals for legislation and other major federal actions "significantly affecting the quality of the human environment". 41 This Act performs a function in what are essentially planning processes.

United Kingdom [1.160] The meaning of environment may be seen, at least to some extent, as a reflection of the purpose of the legislation. If its purpose is relatively wide in the sense that it is part of planning and decision-making processes, then it may be appropriate for environment to have a wide interpretation. On the other hand, if the legislation is more narrowly conceived to control pollution and damage resulting from pollution, then it may have a narrower interpretive perspective. For example, the Environmental Protection Act 1990 states for England and Wales:

] Although the Environmental Protection Act 1991 of Bulgaria is underpinned otion of pollution of the environment, its efficacy turns on damage to the by • en . fin d 45 Envrronmen . t 1·s "a 44 envrronmen t . Ea ch of the three expressions 1s de e . th tuall tural and anthropogenic factors and elements at are mu Y 1 Of comp ex na .• • ali f lif human . t rrelated and affect the ecological equilibrium and the qu ty o e, :~th, the cultural and historic heritage and the landscape". Pollution involves a chan e of the qualities of the environment resulting from the occurrence and intro~uction of physical, chemical or biological factor~ from a natural or · source . And damage is pollution that disturbs or may. cause anthtopogeruc th . "bl disturbance of the equilibrium of the ecosystems exceeding e rrrevers1 e . hi b tw damage rescribed standards and requirements. It is the relations . p e een , pollution and environment that expresses the values recogrused and protected ~y ~e law. The movement from the particular to the general and back again encapsulates some of the complexities of environmental law. [1.17th0

South Africa [USO] The legislation about the environment in South Africa is wide in scope an_d · approach · The Environment Conservatzon Act 1989,. for example,l 1sf managen·al m

concerned both with protection of the natural environment and with the contra o environmental pollution. It states that environment means ~e aggrega~e of ding obi·ects conditions and influences that influence the life and habits of surroun , . 46 f th · · al man or of any other organism or collection of orgarusms. One o e prmc1~ functions of the National Environmental Management Act 1998 . is to estab~sh principles for environmental governance. 47 The definition of envu:onment which it provides is typical of the wide approach taken by many le?1slatures. Thus environment means the surroundings within which humans eXJst and that are made up of: • the land, water and atmosphere of the earth; • micro-orgariisms, plant and animal life; • any part or combination of these and the interrelationships among and between them; and

The environment consists of all, or any, of the following media, namely, the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground. 42

• the physical, chemical, aesthetic and cultural prop~rtie! and conditions of the foregoing that influence human health and well-bemg.

This Act is concerned fundamentally with pollution control and it goes on to define pollution as the release into any environmental medium from any process of substances which are capable of causing harm to man or any other living organism supported by the environment. 43

India

39 40

Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993, Art 2(10 ).

[1.190] The legislation in Asia discloses an equally diverse set of ap~roach~s. The

Environment (Protection) Act 1986 of India is concerned almost entirely with the prevention, control and abatement o f envrronm · ental pollution · Environmental 44

See Alexandre Kiss and Dinah Shelton, Manual of European Environmental Law (Grotius Publications, Cambridge, 1993) PP 3-5. Environmental Protection Act 1991 (Bulgaria), s 1(1).

National Environmental Policy Act 1969 (US), s 101(a). See 42 USC paras 4331 and 4332.

41

National Environmental Policy Act 1969 (US), s 102(2)(C).

45

42

Environmental Protection Act 1990 (UK), s 1(2).

46

Environment Conservation Act 1989 (South Africa), s 1, "environment".

43

Environmental Protection Act 1990 (UK), s 1(3).

47

National Environmental Management Act 1998 (South Africa), s 2.

48

National Environmental Management Act 1998 (South Africa), s 1(1)(xvi).

16 (1.150) (1.190] 17

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

pollution is the presence in the environment of an environmental pollutant 49 and an environmental pollutant is any solid, liquid or gaseous substance injurious to environment. 5 For this purpose the emphasis of the interpretation of environment is on physical and biological factors. Thus it includes "water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property". 51

°

China The Environmental Protection Law 1989 of the People's Republic of China is concerned as much with the management, protection and improvement of the environment as with the prevention and control of environmental pollution. 52 Environment as used in this law refers to:

[1.200)

without any particular point or perspective of reference. In that sense it was the land, the water and the atmosphere that were to be protected for their own intrinsic values. The legislation in Victoria, on the other hand, included the land, water and atmosphere as part of the surroundings of human beings. The point of reference was humanity and perhaps the values to be protected were the values that human beings recognise in land, water and atmosphere. This argument may be taken further in relation to the interpretation given to environment by the Protection of the Environment Administration Act 1991 (NSW) and the Protection of the Environment Operations Act 1997 (NSW). It means: Components of the earth, including:

The total body of all natural elements and artificially transformed natural elements affecting human existence and development, which includes the atmosphere, water, seas, land, minerals, forests, grasslands, wildlife, natural and human remains, nature reserves, historic sites and scenic spots, and urban and rural areas. 53

While this definition lacks perspective, the scope of its subject matter is breathtaking. But it may be so wide that it is difficult to implement in practice. That is a matter of available resources and cultural priorities rather than of law.

ENVIRONMENT IN AUSTRALIAN IAW

Focussed interpretations The concept of environment in Australian law has undergone similar developments over the last two or three decades. Much of the legislation in the 1960s and early 1970s attempted to control a range of polluting activities. It was not concerned with the protection of the environment in more general terms. It is thus not surprising that the word environment, where it appeared, meant in effect the several media affected by polluting activities. For example, the Environment Protection Act 1973 (Tas) interpreted environment as the land, water and atmosphere of the earth. 54 The Parliament of Victoria had a few years earlier enacted a more extensive interpretation of environment: [1.210)

The physical factors of the surroundings of human beings including the land, waters, atmosphere, climate, sound, odours, tastes, the biological factors of animals and plants and the social factor of aesthetics. 55

While land, water and atmosphere were common to each of these two interpretations, the function performed by these elements of the environment was different. The Tasmanian legislation referred to land, water and atmosphere 49 50 51

52 53

54 55

Environment (Protection) Act 1986 (India), s 2(c). Environment (Protection) Act 1986 (India), s 2(b). Environment (Protection) Act 1986 (India), s 2(a). Environmental Protection Law 1989 (China), Art 1. Environmental Protection Law 1989 (China), Art 2. Environment Protection Act 1973 (Tas ), s 2(1). Environment Protection Act 1970 (Vic), s 4(1).

18 [1 .200]

I CH 1

(a)

land, air and water; and

(b)

any layer of the atmosphere; and

(c)

any organic or inorganic matter and any living organism; and

(d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a) to (c). 56

Paragraphs (a) to (c) are clearly specific elements of the wider environment. It is paragraph (d) that introduces the human perspective and not only for its own sake but also by including interactions between natural systems and systems affected by human behaviour. This legislation is concerned, as its title suggests, more with protection of the environment in the sense of pollution control rather than planning for decision-making about the future use of the resources of the environment. It is the second of these objectives that is the concern of the Environmental Planning and Assessment Act 1979 (NSW). This legislation creates not only a development control system but also mechanisms for assessing the environmental impacts of potential developments. Importantly, the interpretation of environment reveals a different perspective from that of the Acts of 1991 and 1997. The 1979 Act provides that environment includes: Ali aspects of the surroundings of man, whether affecting him as an individual or in his social groupings. 57

While environment includes all of its aspects, it is the perspective of human beings that places humanity at the centre of this approach. It recognises, of course, that human beings are involved both individually as well as socially. Precisely the same interpretation of environment had been enacted by the Parliament of the Commonwealth in the Environment Protection (Impact of Proposals) Act 1974 (Cth). 58 It was the 1974 Act of the Commonwealth that provided for the first time in Australia a statutory mechanism for environmental impact assessment of various kinds. The interpretation provided for environment thus reflects the nature and function of the legislation in which it is included.

56

Protection of the Environment Administration Act 1991 (NSW), s 3(1); Protection of the Environment Operations Act 1997 (NSW), Dictionary, "environment".

57

Environmental Planning and Assessment Act 1979 (NSW), s 4(1).

58

Environment Protection (Impact of Proposals) Act 1974 (Cth), s 3. [1.210] 19

The Nature of Environmental law

PART I The Normative Context of Environmental Law

Generic interpretations The relatively specific reference to land, water and atmosphere on the one hand and the relatively general reference to all aspects of the surroundings of man on the other hand have given way in more recent legislation to interpretations of environment that are both more comprehensive and more extensive. This approach commenced in 1993 with the enactment by the Parliament of South Australia of the Environment Protection Act 1993 (SA) and soon thereafter by the enactment of the Environmental Protection Act 1994 (Qld) by the Parliament of Queensland. These statutes are concerned not only to control polluting activities but also to prevent environmental harm in a much wider sense. To that extent they incorporate planning type functions as well as pollution control type functions. The concept of environment in the Environmental Protection Act 1994 (Qld) and now reflective of Australian law in general - is this. It is stated to include: (1.220)

• ecosystems and their constituent parts, including people and communities; and • all natural and physical resources; and • the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and • the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c). 59 A less detailed but essentially consistent version of this interpretation appears in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). 60 This interpretation, although it uses words of some generality, is quite explicit in relation to its subject matter and to its perspectives. First, people as individuals and people forming communities are considered to be a constituent part of an ecosystem. Significantly, people in this sense are simply a part of an ecosystem. This is a recognition that ecosystems in the wide sense are the environment. Clearly people are a part of the environment. Thus, although the human perspective is important, it is not dominant. Then there is the reference to natural and physical resources. This expression is not defined, although for the purposes of the Nature Conservation Act 1992 (Qld) the expression natural resources is stated to include wildlife, soil, water, minerals and air. 61 It is, however, the reference in the Environmental Protection Act 1994 (Qld) to resources that is important. The word resources impliedly connotes use and in this sense a resource is an asset available to satisfy needs. There is probably little doubt that soil, water and minerals fall within this framework. While wildlife and air are not normally considered to be assets, there is no reason in principle why they cannot be treated in this way. It would seem that, while the word resources may be seen to be descriptive, it may also imply a value and the value is use of the asset in question. This again clearly connotes an anthropocentric perspective.

59 60

Environmental Protection Act 1994 (Qld), s 8.

61

Nature Conservation Act 1992 (Qld), s 7 and Sch, "natural resources".

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 528, "environment".

20 [1.220)

I CH 1

Reference to the qualities and characteristics of locations, places and areas is more complex. While land lies at the foundation of this reference, it would seem to be wider than land so as to include the values of land and landscape in a much wider sense. 62 This approach is enhanced by reference to the criteria according to which these locations, places and areas have value. There are five such criteria: • biological diversity and integrity; • intrinsic or attributed scientific value or interest; • amenity; • harmony;and • sense of community. Each of these is somewhat different. Reference to biological diversity and integrity relates to the intrinsic value of biodiversity, apart altogether from any human interest in biodiversity. This is picked up again, at least to some extent, in the criterion of intrinsic or attributed scientific value or interest. While the word scientific may cause problems in this context, the reference to intrinsic value or interest leaves human beings out of account. On the other hand the reference to attributed value or interest clearly includes human beings whose values and interests are attributed to the locations, places and areas in question. Amenity, on the other hand, seems to be an exclusively human perspective. This may also be true of a sense of community. But harmony encapsulates a relationship between human beings and the locations, places and areas of which they are a part. Finally, there is the reference to social, economic, aesthetic and cultural conditions. There would seem little doubt that these conditions disclose an exclusively human perspective. Yet it is recognised quite specifically that these conditions affect the other elements of the environment and that the other elements of the environment are equally affected by these conditions. The result is an interpretation of environment that is wide and comprehensive yet meaningful - certainly in particular sets of circumstances. Despite the complexity of this interpretation, there is a clear recognition of the intrinsic values of the environment as well as the values that human beings place upon the environment for their own interests. And it is the relationship between these different perspectives that lies at the foundation of this interpretation. It is a difficult concept. Despite its relative generality, it has meaning. The interpretation is important because it sets the parameters for the application of the legislation. These have been widely prescribed by the legislation. In practice, however, the question is likely to be not so much what is the environment but rather what are the elements of the environment that are relevant in a particular set of circumstances and likely to be impacted upon by the activities in question.

The interpretation of environment in practice This question is answered in different ways. The legal system itself may seek to provide an answer. In practice the best approach may be based simply upon experience. Let us look at experience first of all. Whether or not environmental planning and environmental protection invoke different concepts

(1.230)

62

See generally D E Fisher, "Can the Law Protect Landscape Values?" (2006) 9 New Zealand Journal of Environmental Law 1. [1.230) 21

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

of environment, Alan Gilpin has suggested in the context of environmental impact assessment - a strategy linked principally to environmental planning but also in appropriate cases to environmental protection - that 13 elements of environment now generally form part of most environmental legal systems: • all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings; • natural resources including air, land and water; • ecosystems and biological diversity; • fauna and flora; • social, economic, and cultural circumstances; • infrastructure and associated equipment; • any solid, liquid, gas, odour, heat, noise, vibration, or radiation resulting directly or indirectly from the activities of human beings; • identified natural assets such as natural beauty, outlooks, and scenic routes; • identified historical and heritage assets;

• the presence of outstanding natural features, including caves; • gradient; • any buildings or other infrastructure; • any marine areas; • kinds of fauna in the area; and • the current state of the environment in the area, including information about the extent of erosion, whether the area is infested with weeds or feral arumals 66 and whether the area is covered by native vegetation or crops. While this calls for information based objectively on fact about these elements of the environment, there are value judgments implicit in some of the information required. The use of words such as outstanding, cur~e~t state of the environment an d infested essentially call for a judgment or an opiruon rather than a statement . of fact. This is no criticism of the regulations. It is simply an indication once agam of the complexity of environmental law. It is often difficult to see in practice the theoretical distinction between a matter of fact, the expression of an opinion and an issue of legitimacy.

• identified cultural and religious assets; • aesthetic assets; • public health characteristics; and

Judicial interpretations of environment

• identifiable environmental planning, environmental protection, environmental management, pollution control, nature conservation, and other mitigation measures. 63 Most of these elements are descriptors. Some, however, contain or imply a normative or perhaps even a prescriptive quality. For example, words such as assets imply an economic value. Words such as beauty and scenic imply cultural values. And the reference to environmental protection and pollution control measures suggests a normative structure. So much for experience. Can the legal system assist in determining what are the elements of the environment that are relevant in a particular set of circumstances? A useful example is the information required to be provided for an environmental impact assessment. The Environment Protection and BiodiversihJ Conservation Act 1999 (Cth) prohibits a range of actions that have or are likely to have a significant impact upon the environmental values protected by the Act. 64 To answer the question whether a particular action is likely to have a significant impact upon any such values requires the provision of information. The regulations prescribe the information that is required for this purpose. 65 It includes a description of the important features of the project area and the affected area including, if relevant to the project area or affected area, information about: • soil and vegetation characteristics; • water flows, including rivers, creeks and impoundments; 63

Alan Gilpin, Environmental Impact Assessment (EIA): Cutting Edge for the Twenty-first Century (Cambridge University Press, Cambridge, 1995) p 2.

64

Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 12, 15A, 158, 15C, 16, 17B, 18, 18A, 20, 20A, 21, 22A, 23 and 24A.

65

Environment Protection and Biodiversity Conservation Regulations Sch 2.

22 [1.230]

I CH 1

2000

(Cth), reg 4.03 and

Although the law offers an interpretation of environment along the lines discussed, there remains a fundamental question. What elements of the environment are relevant in a particular case? This issue increasingly comes before the courts in Australia. We consider some examples.

[1.2401

The Bailey case The issue for the Land and Environment Court of New South Wales in the case of Bailey 67 was whether the logging activities proposed by the For~stry Commission of New South Wales in the Mistake State Forest were likely significantly to affect the environment within the meaning of s 112(1) of the Environmental Planning and Assessment Act 1979 (NSW). For present purposes the question was what was the environment likely to be affected. The proposal was for logging to take place in relatively small individual compartments for which harvesting plans were prepared. The Forestry Commission argued that_ ~e environment for this purpose was the whole of the State forest area compnsmg 8,616 hectares rather than the individual compartments to be logged according to the harvesting plans. In other words, there was likely to be no significant impact on the environment if the environment were taken to be the whole of the State forest. Whereas, if the environment were the individual compartment, then there might well be a significant impact. . . The court decided that the Forestry Commission had failed to comply with its statutory obligations and the Forestry Commission agreed to undertake an environmental impact assessment in accordance with the legislation. In reaching its decision the court said this about environment:

[1.250)

The significance of the likely impact of the activity must therefore be gauged against the nature and scale of the relevant environment. The "environment" is defined to 66

Environment Protection and Biodiversity Conservation Regulations 2000 ( Cth ), Sch 2, para 5.05.

67

Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200.

[1.250] 23

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

One can well understand that Parliament regarded it as a legitimate consideration in the exercise of the town planning function to have regard to whether a projected development may pollute the air by the emission of noxious vapours; or the rivers or the sea by the emission of poisonous fluids; or the soil and the forests by similar insults. It is probably also within s 32A to consider such matters as the likelihood that significant tracts of forest may be felled to make room for the development or that open-cut mining may alter the balance of the terrestrial environment. What has been seen as critical in this case, however, is not the environment, as I understand that expression, but rather the well-being of a particular species. 71

include all aspects of the surroundings of man (s 4), whether affecting him as an individual or in his social grouping. Whilst this court has on a number of occasions accepted that the definition is expressed in the widest possible terms, it has, however, rejected claims that the relevant environment of a particular activity should be regarded as the whole of the state or region in order to justify a determination of an "insignificant" likely impact. Whilst in appropriate circumstances it is open to look at the whole undertaking of which the relevant activity forms a part, it must remain a question of fact as to what is the environment for relevant purposes with respect to the proposed activity. 68

What is the environment in any particular act of circumstance is thus a matter of fact. But this does not mean that the courts have no part to play in the implementation of the legislation. It is a function of the courts - especially appellate courts - to ensure that the relevant decision is made consistently with and in compliance with the law. So, while a court will not review circumstances of fact, a court will nevertheless ensure that the approach to decision-making complies with the law. According to the Bailey case how to determine what is the relevant environment is a matter of law notwithstanding that the relevant environment is a matter of fact.

Clearly the well-being of a species was an issue. But it was not an issue of environment. The High Court of Australia took a different view. Their approach was simple and practical. Thus: What constitutes the relevant environment must be ascertained by reference to the person, object or group surrounded or affected. The reference point for the purposes . . . of the Act is the land which is the subject of an application to which those provisions apply. In the present case it is the land which was the subject of the application for rezoning and which was later resumed. That land was and is surrounded by other land, including a narrow strip of land fronting the sea. During their nesting season turtles resort to that coastal strip and, perhaps, also to adjacent coastal dune areas to lay their eggs. When the eggs are hatched, hatchlings, or the survivors of them, journey from the coastal strip to the sea. Even taking the narrowest possible meaning of the word "environment" and confining it to the immediately adjacent land, the resumed land was and is environed by land which turtles used and continue to use as a rookery. n

The Murphy case The issue in the Murphy case 69 was not what area of land constituted the environment but rather whether living organisms were part of the environment. The issue arose in this way. An application under the Local Government Act 1936 (Qld) for rezoning to enable a residential development to go ahead had been rejected. The land was subsequently resumed for the purposes of an environmental park. The formal question was the proper basis for valuing the land in the context of assessing compensation for this resumption. The land in question was adjacent to a beach which was an internationally recognised turtle rookery. The turtles were a migratory species and they resorted to the beach at the appropriate times of the year. It was argued that any residential development on land adjacent to the beach would detrimentally affect the turtles. Section 32A of the Act required the local authority to take into account any deleterious effect on the environment in determining an application for rezoning. In determining the proper basis for valuing the land, therefore, one of the issues was "whether it was open to either of the courts below to have regard to the likelihood that residential subdivision of the subject land would not be permitted in the interests of the turtle population". 70 Were the turtles located on the beach from time to time part of the environment of the immediately adjacent land proposed to be developed? A majority of the Supreme Court of Queensland answered negatively while the High Court of Australia unanimously answered positively. Justice Connolly, one of the majority in the Supreme Court of Queensland, determined that a living organism could not be identified with its environment. Thus: (1.260)

Thus an effect upon the turtle population constituted a deleterious impact on the environment of the resumed land. The decision in the Murphy case was reached without the benefit of a statutory interpretation of the word environment. The High Court of Australia relied entirely upon the ordinary meaning of the word. Clearly that was sufficient in that case. The High Court accordingly confirmed that how to determine what is the relevant environment is a matter of interest to the law.

The Coastal Waters Alliance case The inclusion of an interpretation of environment in the legislation does not necessarily make the task of applying the legislation any easier. In the Coastal Waters Alliance case 73 decided by the Full Court of the Supreme Court of Western Australia in 1996 the issue was the relevance of economic loss and extraneous commercial considerations. The potential ambiguity was caused by the use of the word "economic" in the interpretation given by the legislation. Section 3(1) of the Environmental Protection Act 1986 (WA) provided this interpretation of environment:

(1.270)

Subject to subsection (2), [it] means living things, their physical, biological and social surroundings, and interaction between all of these.

Subsection (2) went on to provide:

Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200 at 212.

71 72

69

The Crown v Murphy (1990) 64 AUR 593.

73

70

Murphy v The Crown (1989) 68 LGRA 286 at 287.

68

24 [1.2601

I CH 1

Murphy v The Crown (1989) 68 LGRA 286 at 293 and 294. The Crown v Murphy (1990) 64 AUR 593 at 596. Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection

Authority (1996) 90 LG ERA 136. (1.270] 25

PART I The Normative Context of Environmental Law

The Nature of Environmental Law

For the purposes of the definition of "environment" in subsection (1) the social surroundings of man are his aesthetic, cultural, economic and social surroundings to the extent that those surroundings directly affect or are affected by his physical or biological surroundings. The Environmental Protection Authority had prepared a report in accordance with s 44 of the Act. It was argued that the report took into consideration matters extraneous to the environment. Justice Rowland explained the argument: It is said that the Environmental Protection Authority Bulletin 739 is invalid in that it has gone well beyond proper environmental factors in that it has taken into account commercial considerations, including the effect the curtailing of dredging operations would have on the commercial activities of Cockburn, its workforce and its land based factories and treatment plant. In particular, it took into account the employment of the workforce of Cockburn, Cockburn's commitments to large contracts to supply lime, and the obligations of the State under the Agreement Act. As well, it is submitted that it acted ultra vires and exceeded its powers by attempting to make a compromise between the protection of sea grasses and the obligations of the State and Cockburn under the Cockburn Cement Act. 74 In effect these arguments were accepted and the report declared invalid. The judicial interpretation of the word environment focussed upon two issues:

• the notion of environment as essentially locational; and • the need for the concept of economic surroundings to be linked to the place in question. The commercial interests of the developers and of others affected by the development did not form part of economic surroundings for this purpose. Such commercial considerations - or non-environmental factors in this sense - may well be relevant for other purposes and in other contexts. But not for the purposes of an environmental report under s 44. Justice Rowland was of the view that the statutory definition limited the ordinary meaning of the word. But: It must, however, be read in context, and it seems to me that it must be related to the

word "environs" which simply means surrounding which, in the context of the matter before this court, must have reference to a place. 75 The place in question was the area likely to be affected by the proposed development and this included - consistently with the Murphy case 76 - "those plants and creatures which presently inhabit that place". 77 What, then, were the "economic surroundings" deemed relevant bys 3(2)? Justice Rowland suggested:

its workforce will suffer if it is unable to dredge. These are no more than the results of the failure to obtain approval to dredge because of the impact on the environment. 78 The limitation placed upon environment by reference to economic surroundings may be seen to anticipate the emerging concept of ecologically sustainable development. It brings together the ecological or environmental, the social and the economic elements rather than polarises them. The 1986 Act probably did not look at it this way but it made relevant economic perspectives while focussing upon the environmental perspectives.

The Friends of Mallacoota case [1.280] This case 79 involved an application under s 38 of the Coastal Management

Act 1995 (Vic) for permission to carry out works on coastal Crown land. An inquiry was held into the environmental effects of the proposal under the Environment Effects Act 1978 (Vic). The issue for the Supreme Court of Victoria was the range of environmental effects relevantly to be assessed under the 1978 Act. Were these "limited to the assessment of effects on the physical environment"? 80 Or did they include "social effects including water safety considerations" 81 which were addressed during the inquiry and in the final assessment by the Minister. The water safety considerations related to the provision of a "safe environment for swimmers, surfers, and boat users". 82 Did the word environment for the purposes of the 1978 Act include social factors as well as physical factors? Justice Osborn analysed the issue from a number of perspectives. First, there was the ordinary meaning of the word which extended "beyond the physical features of the surroundings of the proposed works to include the social environment". 83 This approach was supported by the analysis of the High Court of Australia in the Murphy case which we have already considered. Reference was then made to the definition of environment in the Environment Protection Act 1970 (Vic). This was restricted relevantly to physical factors of the surroundings of human beings. Although the definition of environment in the 1970 Act has remained unchanged, the Act later incorporated a set of principles of environment protection which supported "a broader rather than narrower view" 84 not so much of environment but rather of environmental effects. This emphasises that the meaning of environment in any particular set of circumstances is to some extent dependent upon of the effects of the activity in question. Support for the wider meaning of environment came finally from the context of the 1978 Act. In these words:

It seems to me that, in context, they must be related to the physical area involved in the proposed dredging. It is not a relevant environmental matter if it be the fact that no other shell sand material is available to Cockburn to fulfil its contracts. It is not an environmental factor that Cockburn will suffer loss if it is unable to dredge and that

74 75

Coastal Waters Alliance of Western Australia Incorporated v Environmental Authority (1996) 90 LGERA 136 at 143 and 144. Coastal Waters Alliance of Western Australia Incorporated v Authority (1996) 90 LGERA 136 at 150.

Environmental Protection

The

Coastal Waters Alliance of Western Australia Incorporated v Authority (1996) 90 LGERA 136 at 150.

There is nothing in the subject matter, scope and purpose of the [1978 Act] that suggests Parliament intended a limitation of the type contended for. The [1978 Act] is

79

80 81

82

Crown v Murphy (1990) 64 AUR 593.

76 77

26 [1,270]

Protection

Environmental Protection

I CH 1

83 84

Coastal Waters Alliance of Western Australia Incorporated v Environmental Protection Authority (1996) 90 LGERA 136 at 150. Friends of Mallacoota v Minister of Planning (2010) 173 LG ERA 332. Friends of Ma/lacoota v Minister of Planning (2010) 173 LG ERA 332 at 353. Friends of Mallacoota v Minister of Planning (2010) 173 LG ERA 332 at 353. Friends of Mallacoota v Minister of Planning (2010) 173 LG ERA 332 at 354. Friends of Mallacoota v Minister of Planning (2010) 173 LG ERA 332 at 354. Friends of Mallacoota v Minister of Planning (2010) 173 LG ERA 332 at 356.

[1.280] 27

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

fundamentally concerned with fully informing the primary decision maker of the environmental implications of proposed works in appropriate cases. 85

Accordingly, social factors, including economic factors subsidiary to social factors, were relevantly considered in determining whether to grant permission to carry out the proposed works on coastal Crown land.

The Buzzacott case A proposal to expand a copper, uranium, gold and silver mine and processing plant with all associated infrastructure in South Australia and the Northern Territory was approved under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The uranium was proposed to be exported. Was the impact on the environment of the export of uranium a relevant matter for consideration? As we have seen, the 1999 Act gives a wide interpretation to environment. It was suggested that the word "environment" should be read as including the environment outside Australia. 86 Two arguments were presented in support of this. The first was "the innate interconnectedness" of the environment. 8 7 Presumably this is a reflection of the idea that the environment knows no artificial boundaries. The second was the reference to Principle 21 of the Stockholm Declaration 1972: in particular, it would seem, "the responsibility to ensure that activities" within the jurisdiction or control of Australia "do not cause damage to the environment of other states". 88 In addition, one of the objects of the 1999 Act was related to Australia's international environmental responsibilities. Justice Besanko was not convinced by these arguments. His Honour focussed upon the matter protected within the meaning of s 136(1)(a) of the 1999 Act. 89 Accordingly the matter protected was the environment and "on the face of it, it is the Australian environment". 90 There was no ambiguity about the meaning of the word environment - in relation to the Australian environment - and there was nothing in the 1999 Act to suggest a contrary intention on the part of the Commonwealth. There was no doubt that the mining and processing of uranium would have an impact on the environment within Australia but any impact on the environment outside Australia was not within the contemplation of the Act. [1.290)

The relationship between environment and impact [1.JOO] The word environment rarely appears by itself in the legislation. It is either

associated with protection or conservation or with the impact on the environment of an existing activity or a proposed activity. For example the requirement for an 85

Friends of Mallacoota v Minister of Planning (2010) 173 LGERA 332 at 358.

86

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161 at 196.

87

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161 at 196.

88

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161 at 196 and 197.

89 90

Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LG ERA 161 at 198. Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2012) 187 LGERA 161 at 198.

28 (1.290)

I CH 1

environmental impact statement is often triggered by the likelihood of a significant impact on the environment of the proposed activity. One of the questions that has arisen from time to time is whether a decision to permit an activity is likely to have an impact - whether or not significant - upon the environment. The meaning of environment has been caught up in answers to this question. The issue arose in the Australian Conservation Foundation case in 1980. 91 The High Court of Australia was concerned with s 5 of the Environment Protection (Impact of Proposals) Act 1974 (Cth) and the procedures under it. The procedures required the minister to take into account whether and to what extent a proposed action might result in a substantial environmental effect. The issue was whether an environmental impact statement was required or not. Justice Stephen expressed this view: As the terms of s 5 of the Act and the definition of "proposed action" in the procedures make clear, it is action proposed by the executive arm of government with which an EIS [Environment Impact Statement] is concerned. Occasionally, as in the present case, that executive action will consist of the granting of some executive consent, the grant of which is itself incapable of direct environmental detriment but which may produce that result at second-hand, by permitting some development by private enterprise which could not proceed without it. 92

In theory, therefore, the environment may be affected - indirectly and at second hand - by decisions in relation to activities rather than by the activities themselves. Justice Wilcox in the Yates Security Services case 93 adopted this approach in relation to the interpretation of s 30 of the Australian Heritage Commission Act 1975 (Cth). As his Honour put it, "the granting of the consent was not to be divorced from its implementation". 94 The issue has arisen subsequently in relation to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) which has superseded the 1974 Act and the 1975 Act. The question in the Save the Ridge 95 case was whether the process for making amendments to the National Capital Plan for the Australian Capital Territory breached s 28 of the 1999 Act. Subsection (1) provides that the Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction. A freeway had been constructed in the Australian Capital Territory and the National Capital Plan was amended after the event to include the freeway in the plan. As the Federal Court pointed out, "it was common ground in this appeal that the effect of the plan in this form was that the road could not lawfully be built without the plan being amended". 96 The issue narrowed to whether the amendments to the plan constituted an action requiring approval in accordance with s 28 of the 1999 Act. The 1999 Act included an interpretation of action which without any doubt would include the 91

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.

92

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 545-

93

Yates Security Services Pty ltd v Keating(1990) 98 ALR 21.

94

Yates Security Services Pty Ltd v Keating ( 1990) 98 ALR 21 at 50.

95

Save the Ridge Inc v Commonwealth (2005) 142 LG ERA 18.

96

Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 at 24. (1.300] 29

The Nature of Environmental Law

PART I The Normative Context of Environmental Law

construction of a freeway. Section 524 of the Act stated what was not an action. By subsection {l) the exemption applied to a decision by a number of government bodies including an agency of a self-governing territory. In accordance with subsection (2), a decision by such a government body to grant a governmental authorisation (however described) for another person to take an action was not an action. One of the questions put to the Federal Court at first instance was - by way of paraphrase - whether the making of the amendments to the National Capital Plan and the granting of works approval constituted an action for the purposes of the Act. The answer was no. The appeal to the Full Federal Court was dismissed. In their words:

I CH 1

not. In any event, no evidence of environmental impact in any sense was brought before the court and the exemption in s 524(2) of the Act applied to the

So much is clear. The court went on to express views on the meaning of environment and its relationship with impact. The circumstances in this case seem to fall within the scenario described by Stephen J in the Australian Conservation Foundation case. 98 Namely - by way of a paraphrase - an executive action itself incapable of direct environmental detriment but capable of indirect environmental detriment by permitting development which could not proceed without a grant by way of executive action. The majority of the Full Federal Court expressed this opinion:

101 circumstances of thi s case. A different perspective on the relationship between environment and impact was discussed in the Kangaroo Island case. 102 It involved an application for development consent under the Development Act 1993 (SA) to use an area of land on Kangaroo Island in South Australia for the purpose of a "helicopter joy flight operation". The conduct of facilities designed for the arriv~ ~d departure of helicopters was a prescribed activity of environmental significance for the purposes of the Environment Protection Act 1993 (SA). One o~ the issues - _although not expressed in this way - was the range of envuonmental unpacts requued to be assessed for the purposes of the Development Act 1993 (SA). For example, the impact of helicopter flights on the environment generally or _th~ impact of helicopter flights in a much narrower sense. To some extent this involved an analysis of the relationship between the objects of the Development Act 1993 (~A) and the objects of the Environment Protection Act 1993 (SA). From the perspective of the environment protection legislation, it was argued that "the impact on the whole of the area under the helicopter flight path should be considered by the Court in considering this assessment". 103 The court, however, expressed the view that the application for development consent fell to be decided under the Development Act 1993 (SA) which was concerned with changes in the use of land. The court distinguished clearly between an assessment for the purposes of the development legislation and an assessment for the purposes of the environment

It cannot be assumed that the actions of a planning authority could never be action for the purposes of s 28. It would depend on what the authority did and its

protection legislation. The decision of the court in the circumstances of the case was beyond doubt:

The principal object of s 524(2) being to exclude the final or operative decision, that object would be frustrated if the decisions made along the way were not also excluded. Accordingly, the decisions and related steps taken to propose the amendments were comprehended by s 524(2) even though they were taken by different manifestations of the Commonwealth (the Authority in formulating and proposing the amendments and the Minister informally approving them). 97

consequences, either direct or indirect. 99

Justice Emmett went somewhat further. His Honour placed the emphasis upon impact as defined in the Macquarie Dictionan;. Consequently: That word is singularly inappropriate to describe what might happen in relation to the environment, except in a physical sense. The environment, as defined for the purposes of the [Environment Protection and Biodiversity Conservation Act], is the physical world. It is not a jurisprudential construct, or a judicial right or duty. For an action to have an impact on the environment, the action must have some effect in the physical world. The mere removal of a legal obstacle in the way of action that might have an impact on the environment does not itself have any impact on the environment. What has impact is the action that takes place as a consequence of the removal of the legal prohibition. 100

Accordingly, the connotation of environment is physical and the connotation of impact is direct. This is a somewhat narrow interpretation of environment and of impact. There was little doubt according to his Honour that in this case the activity - the construction of the freeway - might well have a "physical" impact on the environment. But the removal of a legal prohibition on this activity would

The Development Act sets up a land use planning system. It does not seek to control activities which are not related to land. In my view, the proposed helicopter flights can only reasonably be characterised as a use of the land whilst the helicopter is ~n or over the land. The impact of the helicopter flight can be assessed beyond the limits of the land for so long as those impacts can reasonably be said to arise from the use of the land by the helicopter, but no further. In other words, once a helicopter ha_s reached a cruising height, so that the impact on the ground under 1t 1s the same as it would be regardless of where the helicopter had taken off from, the assessment of the impact of the helicopter flight is no longer the assessment of a change in the use of the 104 land. It is no longer an assessment which is called for under the Development Act.

For these reasons, the assessment in this case was restricted to the impact of the activity on the land rather than the impact of the activity on the environment notwithstanding that the land was a part of the environment. 101

This case was distinguished in Brown v Forestry Tasmania (No 4) (2006) 152 LG ERA 146 at 156 and 157. "Save the Ridge is distinguishable because the attack in that case was on the steps taken to amend a plan which would authorise the construction of a freeway extension. There was no attack on the construction of the freeway extension. Here, there is no attack on a Forest Practices Plan, but on the work which is planned to take place under a Forest

97

Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 at 29.

98

Australian Conservation Foundation Inc v Commonwealth ( 1980) 146 CLR 493.

102

Practice Plan." Eco-Action Kangaroo Island Inc v Kangaroo Island Council (2012) 186 LGERA 377.

99

Save the Ridge Inc v Commonwealth (2005) 142 LG ERA 18 at 28.

103

Eco-Action Kangaroo Island Inc v Kangaroo Island Council (2012) 186 LG ERA 377 at 385.

Save the Ridge Inc v Commonwealth (2005) 142 LGERA 18 at 37.

104

Eco-Action Kangaroo Island Inc v Kangaroo Island Council (2012) 186 LG ERA 377 at 388.

100

JO [1.JOO]

[1.300] 31

PART I The Normative Context of Environmental Law

CONCLUSION Language is the medium through which the law finds expression. Words and their precise meaning are therefore critical. Environmental law is replete with words that are easy to state, fascinating to discuss, difficult to interpret but critical to apply. Words such as environment, ecology, economy, effect, impact, significant, likely. Difficulties of analysis, of interpretation and of application are often blamed upon semantics. In other words, a semantic approach is often dismissed as being unreal. Words like environment cannot be dismissed in this way. Their interpretation and application are critical elements of the environment legal system. Even if environment was originally taken to be an area within locationally and spatially identifiable boundaries, it has now assumed a meaning sufficiently wide to include not only such areas but also anything and everything within those areas. Moreover, for many, it now implies a value rather than a mere description: for example, the need to use, conserve or protect the environment. Distinctive approaches to the meaning of environment have been adopted by legal systems at international, national and local levels. The definition of environment - if indeed it is attempted by a particular legal system - has produced a range of responses. A number of these reflect the purpose of the legislation: a pollution control system, a planning regime or even a system of management. The existence or absence of a statutory interpretation has not proved critical. The ordinary meaning of the word and its application in practice have turned out to be important. This is not to suggest that statutory interpretations are valueless. A statutory definition - like the ordinary meaning - sets parameters within which decisions are made. They may be wide: they may be narrow. In any case they indicate the matters - whether they are facts, principles, values, outcomes - to which attention should be directed. Their relevance, however, remains a matter of law. A definition explains the substantive scope of decision-making. It remains an issue of law what is the relevant meaning of environment in any particular set of circumstances. The law has had to confront this complexity by recognising and creating values, systems, institutions and processes reflective of this notion of environment. Traditional concepts of law as a regime for setting and enforcing standards of behaviour and decision-making have been found wanting. The mechanisms of a legal system - powers, liabilities, rights and duties - have failed to confront the complexity of environment. Ideas of responsibility for achieving outcomes ecologically sustainable development, for instance - are beginning to infiltrate the system. How this is to be done is still very much in its infancy. But legal doctrine is evolving rapidly but perhaps in unexpected ways.

CHAPTER 2

[1.310)

The Ethical Dilemmas of Environmental Law

INTRODUCTION The complexity of environment is currently reflected in the variety of interpretations given to the expression by the legislation. 1 The tendency of a number of enactments, including the Environmental Protection Act 1994 (Qld), has been to include references not only to physical and biological elements of the environment but also to their intrinsic values. This immediately raises questions about the perspective from which environmental values are recognised. The definitional problems associated with the expression environment for legal purposes are no more than a reflection of the underlying ethical problems confronted by those responsible for the formulation of policy, the enactment of legislation and the implementation of legislation. The values of a society change from time to time - sometimes slowly and sometimes rapidly. Often it is difficult if not impossible to identify these values and the ethical foundations from which they emerge. Yet to determine the ebb and flow of values espoused by society greatly assists an understanding of the concepts that underpin any contemporary system of law. It is generally recognised that society has become much more concerned about the quality of the environment during the last three or four decades than perhaps at any time earlier in history. This is not to suggest that the environment has not been a matter of interest if not concern to earlier generations. Indeed it has. Clive Ponting has identified over this recent period "a growing disillusion with the consequences of development and a trend towards a greater interest in the idea of conservation and protection of the environment". 2 However he goes on to add the qualification that: [2.10]

Such currents of thought have not displaced the basic philosophy, ingrained in western thought for the last two thousand years, that sees a separate "natural world" for humans to inhabit, and the economic approach that sees (or claims to see) continued industrialisation and further economic growth as a prerequisite for any environmental improvements. 3

While this may be true of western thought, the ideologies of the western world are not the only influences upon the ethics of environmentalism. International environmental law, for example, reflects to a growing extent the values of developing and under-developed nations, as much as those of developed nations. Clive Ponting has also argued that the current state of the environment has been brought about by two separate sets of changes in the capacities and attitudes See above [1.210 ]-[ 1.230].

32 (1.310)

2

Clive Ponting, A Green History of the World (Penguin, Harmondsworth, 1991) p 399.

3

Clive Ponting (1991) pp 399 and 400. [2.10) 33

The Ethical Dilemmas of Environmental Law

PART I The Normative Context of Environmental Law

of society. "For all but the last few thousand years of their two million years existence humans have obtained their subsistence by a combination of gathering foodstuffs and hunting animals." 4 Then came the first great transition agriculture. This led inevitably to increased human population. And so did the second great transition. This was the exploitation of fossil fuels. The large amounts of energy so generated enabled a huge expansion of industry and trade. Thus:

[Faith in perpetual progress] was unknown either to Greco-Roman antiquity or to the Orient. It is rooted in, and is indefensible apart from, Judeo-Christian teleology. 8

According to this view, attitudes were different prior to the impact of Judeo-Christian philosophy. Nature was imbued with spiritual and sacred values and so, ''by destroying pagan animism, Christianity made it possible to exploit nature in a mood of indifference to the feelings of natural objects". 9 There is an interesting example: To a Christian a tree can be no more than a physical fact. The whole concept of the sacred grove is alien to Christianity and to the ethos of the West. For nearly 2 millennia Christian missionaries have been chopping down sacred groves, which are idolatrous because they assume spirit in nature. 10

The last two hundred years have, however, been characterised by a massive and continuing increase in energy consumption from non-renewable resources. 5

This represents a crisis in relation not only to the anthropocentric but also the ecocentric benefits of the natural environment. As Jan Laitos has observed: Accelerated human use of resources also has the devastating consequence of impairing the purely ecocentric benefits that follow when humans do not use resources. When resources are left alone by humans, when they are not exploited or developed, their nonuse is beneficial for the entire biosphere, of which humans are only a part. The destruction of this critical nonuse component of natural resources is creating many of the alarming environmental changes that are so disturbing to the planet. 6

Humans have used the environment and the resources of the environment for their own purposes - no doubt perfectly legitimately. What, however, have been the ethical values that have underpinned these perceptions? It is no surprise that there have been different views about this.

HUMANS AND THEIR ENVIRONMENT

A third view may be described as the capacity of humans to adapt rather than dominate the environment. Contrary to the opinion of Lynn White, Yi-Fu Tuan has stated positively that "classical antiquity knew progressivism". 11 The human impact upon the environment was both constructive and destructive. Reference need only be made, it is argued, to the great engineering feats of antiquity. Not only the world of antiquity: the same has been true of the oriental world. The oriental approach to nature has often been preferred by western intellectuals. But for Yi-Fu Tuan they have been "seduced by China's Taoist Buddhist traditions" and "like to compare the Oriental's quiescent and adaptive approach towards nature with the aggressive masculinity of Western man". 12 The Chinese were concerned as much with the impact on the environment of development as with the need for the development of their resources. Thus they adopted an adaptive attitude to environment based upon "animistic belief and Taoist nature philosophy". 13 Just like Lynn White, Yi-Fu Tuan has also provided an interesting example: Buddhism in China is at least partly responsible for the preservation of trees around temple compounds, islands of green in an otherwise denuded landscape. On the other hand Buddhism introduced into China the idea of cremation of the dead; and from the tenth to the fourteenth centuries cremation was common enough in the southeastern coastal provinces to create a timber shortage there. 14

A historical perspective has often been suggested that this state of affairs has been brought about as a result of the fundamental principles of Judeo-Christian philosophy. These principles, according to Ian McHarg, are the philosophical foundation - much criticised by him, of course - upon which current attitudes are based:

[2.20] It

Whatever the origins, the text is quite clear in Judaism, was absorbed all but unchanged into Christianity and was inflated in Humanism to become the implicit attitude of western man to nature and the environment. Man is exclusively divine, all other creatures and things occupy lower and generally inconsequential status; man is given dominion over all creatures and things; he is enjoined to subdue the earth. 7

A similar view has been expressed by Lynn White but rather from a scientific perspective. This has emphasised the "implicit faith" of human beings in the perpetual progress of science and technology. But he restricts it to a set of related cultures.

4

5 6

7

Clive Ponting (1991) p 18. Clive Ponting (1991) p 267. Jan G Laitos, The Right of Nonuse (Oxford University Press, Oxford, 2012) p 8. Ian McHarg, "Values, Process and Form" in The Fitness of Man's Environment (Smithsonian Institution Press, Washington, 1968) p 213.

34 [2.20]

I CH 2

A fourth perspective is that of indigenous minorities. Whether or not the peoples of the orient have a different perception of nature from those of the west, it is trite but no doubt true to suggest that the value that a people or a community place upon the environment or upon nature is a reflection of their fundamental cultural values. Indigenous peoples, for example, are often credited with more sensitive environmental perspectives than their peers in industrialised and post-industrial societies. Thus: Preserving places important to Navajo people can help preserve Navajo culture, but to be most effective, preservation efforts must widen their focus from the specific 8

9 10 11 12 13 14

Lynn White, "The historical roots of our ecologic crisis" (1967) 155 Science 1203 at 1205. Lynn White (1967) at 1205. Lynn White (1967) at 1206. Yi-Fu Tuan, "Our treatment of the environment in ideal and actuality" (1970) 58 American Scientist 244 at 24 7. Yi-Fu Tuan (1970) at 247. Yi-Fu Tuan (1970) at 247. Yi-Fu Tuan (1970) at 248. [2.20] 35

PART I The Normative Context of Environmental

Law

place to the culturally significant landscape within which each place functions and from which it gets power (significance) and to which it gives power. Preservation efforts that focus on places but ignore their associated landscapes that provide the material basis of the Navajo way of life run the risk of saving the places while letting the living context be destroyed. 15

The Ethical Dilemmas of Environmental Law

I CH 2

_ Judaism, Christianity, Humanism, and th~ Materiali~m w~ch is better named Economic Determinism." 18 Perhaps consistently with this, John Passmore concludes: Bacon and Descartes interpret it in the second way, and their interpretation although there were objectors - was absorbed into the ideology of modem Western societies, communist as well as capitalist, and has been exported to the East. It found expression in a metaphysics, for which man _is the sole finite agent_ and nature a v~st system of machines for man to use and modify _as he pleases. That 1s ~e metaphysics the ecologists are particularly, and rightly, reiecting. But this metaphysics by no means constitutes the entire Western tradition. Nor, as we shall see, does its reiecbon entail the rejection of the science with which it has so often been associated. 19

The cultural, spiritual and religious values placed upon nature may be just as important as the physical and biological values associated with the environment. The issue, therefore, is not so much whether the values recognised by society have become more rather than less environmentally sensitive but rather what are its environmental values at any moment of time. It is these values, underpinned by the philosophical doctrines of the time, that are reflected in the legal system.

co-operation

A functional perspective [2.JO] Against this background it may be possible to see the relationship between humans and nature in three ways:

• humans dominating nature; • humans co-operating with nature; and • humans conserving nature. The first two are very much a reflection of the formulation of the approaches of western philosophy to nature analysed by John Passmore. He describes the first as man as despot and the second as stewardship and co-operation with nature. The third, however, is more a reflection of attempts over the last two decades or so to create an ethic of environmentalism in its own terms.

12.50] It is the doctrine of stewardship that places restrictions upon the exercise of the despotic powers to which John Passmore has referred. In this sense stewardship involves not only caring for the environment but also attempting to perfect it. For what purpose, however, are human beings given this power ~o modify nature? It is not insignificant for present purposes that the answer to this question was given by Sir Matthew Hale the Lord Chief Justice of England fro~ 1671 to 1676: namely, to be "the viceroy of the great God of heaven and earth m this inferior world". This involved moreover a number of activities: To correct and abridge the excesses and cruelties of the fiercer animals, to give protection and defence to the mansuete and useful, to preserve the species of ~vers vegetables to improve them and others, to correct the redundance of unprofitable ' w vegetables, to preserve the face of the earth in beauty, usefulness and fruitfulness .

It is the explicit references to protection and preservation that distinguish humans

Domination

as stewards from humans as despots. The idea of stewardship is similarly the key to the future for Ian McHarg:

[2.40] Let us begin with John Passmore's concept of man as a despot. In a sense

this is the foundation from which most if not all philosophical disputation has developed. As he points out, "there is a strong Western tradition that man is free to deal with nature as he pleases, since it exists only for his own sake". 16 However, this is not simply the consequence of Judea-Christian philosophy. Thus: It is only as a result of Greek influence that Christian theology was led to think of nature as nothing but a system of resources, man's relationships with which are in no respect subject to moral censure. 17

However, he points out that this can give rise to either a conservative or a radical approach. The conservative approach is that human beings can only use nature as it is and cannot improve upon it. The radical view is that nature can be modified and transformed as human beings please. The radical view extends to the use, exploitation and perhaps even exhaustion of the resources of the environment: a clearly economic perspective. Ian McHarg has expressed it even more positively. "This is the face of our western inheritance

We must see nature as process within which man exists, splendidly equipped to become the manager of the biosphere; and give form to that symbiosis which is his greatest role, man the world's steward. 21

Although the doctrine of stewardship acknowledges the values of nature, human beings still retain their position at the centre of these values. It is so important, therefore, that John Passmore has traced this interpretation of the relationship between humans and nature to "seventeenth-century humanism, with its Pelagian emphasis on what can be accomplished by the human will and its playing-down of original sin, rather than from the standard Augustinian tradition". 22 This approach moreover seems to anticipate to some extent the influential views that emerged during the 19th century in one or other of the forms that the doctrine of utilitarianism was to assume. Furthermore, the recognition of stewardship provides an opportunity for human beings to care for nature not only for the benefit of the human beings in question but also for its own sake - at least 18

15 16 17

19

Klara Bonsack Kelley and Harris Francis, Navajo Sacred Places (Indiana University Press, Bloomington, 1994) p 98. John Passmore, Man's Responsibility for Nature (Duckworth, London, 1974) p 27. John Passmore (1974) p 27.

20

21 22

Ian McHarg (1968) p 212. John Passmore (1974) p 27. Matthew Hale, The Primitive Origination Passmore (1974) p 30. Ian McHarg (1968) p 227. John Passmore (1974) pp 30 and 31.

of Mankind

(London, 1677). For details see, John

J6 [2.30) [2.50) 37

PART I The Normative Context of Environmental Law

potentially. While the doctrine of stewardship was regarded by John Passmore as an "important minority tradition", its significance lies in the recognition that it creates responsibilities towards nature on the part of human beings. While stewardship implies that the use of nature is as important as the conservation of nature, it is the notion of responsibility that is important, not only as one of the ethical foundations of environmental law, but also as one of the emerging mechanisms of environmental law.

The Ethical Dilemmas of Environmental Law

nature". 25 It is thus the laws of nature that represent the substance of the community interest that guides the use of land. And what is nature for this purpose? "A system of harmoniously interrelated parts subject to immutable l~ws of science." 26 The ethic of conservation is thus based upon a set of ecological rather than economic values. While Aldo Leopold's ethic of conservation undoubtedly recognises the relationship between nature and humans, how does this work out in practice? Laurence Tribe has pointed out:

Conservation [2.60] Then, finally, there is the function of conservation linked to the concept of human responsibility for the conservation of nature. The formulation of an ethic of conservation is usually attributed to Aldo Leopold. The foundations upon which his idea is built are important. Writing in 1948 he suggested:

Conservation is getting nowhere because it is incompatible with our Abrahamic concept of land. We abuse land because we regard it as a commodity belonging to us. When we see land as a commodity to which we belong, we may begin to use it with love and respect. 23

To recognise that humanity is a part of nature and the natural order a constituent part of humanity is to acknowledge that something deeper and more complex than the customary polarities must be articulated and experienced if the immanent and transcendent are somehow to be united. 27

This necessarily seems to involve the setting of standards for human behaviour, both individual and institutional, and their recognition and enforcement through an ordered system such as the law. Indeed Laurence Tribe himself concluded: The very process of treating some places with such respect may itself reveal and even create conceptual possibilities beyond our present capacities. If certain choices do not merely implement but radically alter the value systems within which they are made, then choosing to accord nature a fraternal rather than an exploited role - even when the resulting institutions resolve in particular cases not to forgo certain human opportunities "for nature's sake" - might well make us d.iiferent persons from the manipulators and subjugators we are in danger of becoming. 28

It is thus the ownership of land by individuals acting in their own private interests that presents the opportunity for abuse. On the other hand if the ownership of

land is vested in the community so that it may be used in the interests of the community, then the opportunity for abuse is reduced and the capacity of the land to be used "with respect" increased. Let Aldo Leopold sum it up in these words: A system of conservation based solely on economic self-interest is hopelessly lopsided. It tends to ignore, and thus eventually to eliminate, many elements in the land community that lack commercial value, but that are (as far as we know) essential to its healthy functioning. It assumes, falsely, I think, that the economic parts of the biotic clock will function without the uneconomic parts. It tends to relegate to government many functions eventually too large, too complex, or too widely dispersed to be performed by government. An ethical obligation on the part of the private owner is the onJy visible remedy for these situations. 24

The proposition that land should be used "with respect" is a statement of value, driven no doubt by a principle of ethics that may now be seen to be the ethic of conservation. The recognition of the community interest operates in practice as a restriction upon the powers otherwise available - as in this case - to the individual owner of land. This too would appear to be an aspect of utilitarianism - but utilitarianism based upon the perceived benefit to the public interest rather than to the interest of an individual.

These ideas lead almost inevitably to a reformulation of the nature and function of Jaw as an artificial discipline imposed upon humanity by itself.

A theoretical perspective It is all very well to state that the environment deserves to be protected and preserved. But how? And why? Is it the ebb and flow of ethical values? If so, what are they? John Alder and David Wilkinson have commented that the range of perspectives on environmental ethics is diverse. There are two main schools of thought. The most basic division is between "anthropocentric" theorists who rely upon traditional values based on human well-being or human rights and nonanthropocentrists who claim that natural objects have value irrespective of human concerns (intrinsic value). 29 [2.70 )

Anthropocentrism Anthropocentrism is based upon the idea that moral values are exclusive to humans. Thus if value is attributed to anything else, the environment for example,

[2. 80)

It is likely that Aldo Leopold's idea goes beyond the mere recognition of a community interest in the use of land. As Charles Meyers has said, "his analysis is in two parts: the rejection of private property and capitalist institutions, and their replacement with a land ethic based on adherence to a belief in the laws of

25

23

28

24

Aldo Leopold, A Sand County Almanac with other essays on conservation from Round River (Oxford University Press, New York, 1966) p x. Aldo Leopold (1966) pp 229 and 230.

38 [2.60]

I CH 2

26 27

29

Charles Meyers, "An introduction to environmental thought: some sources and some criticisms" (1975) 50 Indiana Law Journal 426 at 429. Charles Meyers (1975) at 430. Laurence Tribe, "Ways not to think about plastic trees: new foundations for environmental law" (1974) 83 Yale Law Journal 1315 at 1340. La urence Tribe (1974) at 1346. John Alder and David Wilkinson, Environmental Law and Ethics (Macmillan Press, London, 1999) p 48. [2.80] 39

The Ethical Dilemmas of Environmental law

PART I The Normative Context of Environmental Law

then it is only its value to humans that is recognised. There are of course many ways in which humans attribute value to the environment. As John Alder and David Wilkinson have pointed out: There are many self-serving and individualistic reasons why we should protect ecosystems and encourage biodiversity. They include scientific knowledge, recreation, aesthetic enjoyment, education, a resource base in the gene pool and fear of the unknown consequences of irreversible loss. 30

The value of landscape in particular may be perceived in a number of different ways. Laurence Tribe has expressed the idea very neatly: The impulse that is felt by many as awe and respect for a vast canyon or a spider's web has much in common with the sense of sanctity felt by others as they stand before the structures at Stonehenge or the cathedral at Chartres. 31

Ecocentrism, on the other hand, postulates that the vast canyon or the spider's web must be respected, protected or preserved because of their own intrinsic values. Admittedly, of course, this is a difficult concept. Can value in any meaningful sense exist apart from humans? Whether or not there is an answer to that question, it is the attribution of value, or benefit, to humans that appears to lead almost inevitably to a form of utilitarianism as the ethical foundation of environmental law.

concerned with "the greatest happiness" of individuals, it is no surprise that many of the theoretical underpinnings of economic progress, and also to some extent of environmentalism, are founded upon that doctrine. The doctrine has been reformulated however for contemporary purposes as: The moral theory that judges the goodness of outcomes - and therefore the rightness of actions insofar as they affect outcomes - by the degree to which they secure the greatest benefit to all concerned. 33

It is the benefit to individuals - including individuals as a group - which lies at the foundation of utilitarianism. There seems little doubt that this doctrine can support an ethic of conservation based upon human values though not necessarily based upon the intrinsic values of nature or the environment themselves. This has been one of the major criticisms levelled at a number of arguments used to justify conservation of the environment. One of the major critics of the use of the utilitarian doctrine to support preservation of nature is Mark Sagoff. In this context it would seem that for him utilitarianism is synonymous with anthropocentrism. This is supported by a number of examples. Let one suffice: Nobody takes a 12-foot sloop across the Atlantic because he expects the pleasures of an ocean liner or climbs a really vicious mountain for a view he can have from a plane. No, he goes because he respects nature and wants to pit himself against and conquer it. If it were for beauty, he could have stayed in his garden or gone to his country club. If you do seek the beauty to be found in a public garden or park, that is harmless, of course, but you find that you do not relish the landscape if you must share it with others. Their presence cloys your satisfaction and you resent them more than you enjoy yourself. 34

Ecocentrism John Alder and David Wilkinson have presented the arguments in support of ecocentrism by emphasising four in particular:

(2.90]

• interdependence;

Beyond utilitarianism

• spiritual harmony; • extensionism; and

(2.110]

• fictionism. 32 Interdependence is the idea that all forms of life are interdependent and must be valued for their interdependence. Spiritual harmony is the feeling that individuals have with nature. In a sense the spirit of individual people is coextensive with the spirit of nature. Extensionism treats the environment and ecosystems as persons in the same way as other entities are afforded legal personality. Fictionism is the device by which a status is afforded to the environment or an ecosystem by deeming it to have rights which it would not otherwise have. While the law can treat something as something else with impunity, it may be that a system of ethics cannot go that far.

Utilitarianism The importance of these attempts to rationalise ecocentrism is that morality is concerned essentially with the behaviour of individuals. There is little doubt that in traditional terms the ethical foundations of conservation are linked to human values, human interests and human rights. Since utilitarianism is (2.100]

I CH 2

Mark Sagoff goes beyond a criticism of utilitarianism in this context. He seeks aspects of the doctrine that support the ethic of conservation. There are in particular two of current relevance. One is the use of conservation for the purposes of analysis. There are two elements to this. The first is the principle of the larger population. It is this: If a policy is justified for a given population, then there is a larger population which is also affected by the policy and which includes the original population; for this larger population, the policy is not justified. 35

The second element is that the interests of all entities affected by a policy must be taken into account. 36 Since entities are non-human as well as human, this duty distinguishes - at least to some extent - utilitarianism from anthropocentrism. This is not new. However these two principles taken together become what Mark Sagoff describes as "a powerful tool of analysis. It permits us not only to justify any policy we want, but also, in doing so, to adopt a lofty moral tone". 37 The final element of Mark Sagoff's analysis concerns the aesthetic value of natural environments. The problem is somehow to transfer the aesthetic value 33

Russell Hardin, Morality within the Limits of Reason (University of Chicago Press, Chicago, 1988) p xv.

34

Mark Sagoff, "On preserving the natural environment" (1974) 84 Yale Law Journal 205 at 211.

30

John Alder and David Wilkinson (1999) p 62.

35

Mark Sagoff (1974) at 223.

31

Laurence Tribe (1974) at 1340.

36

Mark Sagoff (1974) at 223.

32

John Alder and David Wilkinson (1999) pp 66-68.

37

Mark Sagoff (1974) at 223.

40 (2.90]

[2.110] 41

PART I The Normative Context of Environmental Law

from human beings to the natural environment itself. It is achieved by the use of a metaphor. In a sense, therefore, the quality of the environment sensed by human beings is deemed to be the quality of the environment itself. This may well be an example of fictionism. A practical instance is given by Mark Sagoff. Reference is made to "a laughing brook". Clearly a person can laugh but a brook literally cannot. However, when the predicate "is laughing" is attached to "the brook", this presents a metaphorical description which in effect encapsulates the aesthetic value of the natural environment. 38

The Ethical Dilemmas of Environmental Law

responsibility that is jointly shared." 44 There are a number of examples of this in relation to international environmental policy. It seems that there is no reason to limit a regime of shared responsibilities to international environmental policy. It may equally apply at the level of national policy. Thus: It is morally permissible for environmentally conscientious nations to bring pressure, at least in certain ways, upon nations that fail to discharge their environmental responsibilities. It would be perfectly permissible, rather than a gross infringement of another nation's sovereign prerogatives, for one nation to grant licences to fish in its territorial waters only to the ships of nations that comply with international standards to protect fish stocks within their own territorial waters. It would also be perfectly permissible for bilateral or multilateral aid donors to attach strings to loans, making receipt conditional upon effective policies to protect the environment within the recipient nations. 45

An ethic of responsibility [2.120] Where does this analysis lead? Fundamentally, the utilitarian doctrine is

inappropriate for Mark Sagoff because "it distracts attention from the real motivation of the ecology movement, which is not to derive economic or recreational benefit from nature so much as to respect it for what it is and therefore to preserve it for its own sake". 39 So he looks for a rationale that is not based upon the utilitarian doctrine. The rationale appears to be fundamentally deontological in character. Thus: We have an obligation to protect natural environments insofar as we respect the qualities ~ey express. Preserving an environment may be compared to maintaining an mstitutio_n, for symbols are to values as institutions are to our legal and political life. The obligation to preserve nature, then, is an obligation to our cultural tradition, to the values which we have cherished. It is difficult and indeed unnecessary to argue that fulfilling this obligation to our national values, to our history, and, therefore, to ourselves confers any kind of benefit; perhaps fulfilling a responsibility is itself a benefit, but this view requires not that we define "responsibility" in terms of "benefits", as the utilitarian does, but that we define "benefits" in terms of "responsibilities". 40 The reference to responsibilities is critical. It will be recalled that, whatever criticisms may be levelled against utilitarianism, Robert Goodin has argued how effective it may be in developing public policy including environmental public 41 policy. One of the tasks undertaken by him was "to explore alternative normative structures for coping with issues of the international environment". 42 There were three: shared rights, shared duties and shared responsibilities. Utilitarianism is concerned fundamentally with the achievement of an outcome. It is not intrinsically concerned with the existence of rights or the imposition of duties. Thus in general terms Robert Goodin concluded that it was "inappropriate (wrong, under a regime of shared rights; pointless, under a regime of shared duties) to force people to do what, in some larger sense, they should". 43 A regime of shared responsibilities however is entirely different. "It is perfectly proper to do what one can - within limits - to force others to shoulder their share of a

38 39 40 41 42 43

Mark Sagoff (1974) at 249. Mark Sagoff (1974) at 264. Mark Sagoff (1974) at 265. Robert Goodin, Utilitarianism as a Public Philosophy (Cambridge University Press, Cambridge, 1995) pp 308-315. See also above [1.90]. Robert Goodin (1995) p 308. Robert Goodin (1995) p 314.

42 [2.120]

I CH 2

Further: It would be both fitting and proper for environmentally conscientious nations to do double-duty, should others refuse to do their duty at all. If some nations are not going to do their part, then the others must do more than their share if the task is going to get done at all. On this analysis, therefore, there should be no moral qualms about paying Brazil to stop destroying the Amazon rainforests, even though this would amount to paying Brazilians to do no more than what morally they should be doing anyway. 46 This type of argument can be transposed from the sovereign rights of states to the rights of owners and managers of the environment within states. Utilitarianism, therefore, may have a major part to play in the formulation of both international and national environmental policy.

Rights and responsibilities [2.130] The notion of responsibility for a stated outcome and the idea of a duty to

engage in or refrain from specific behaviour reflect a distinctly negative or restrictive perspective. With which, of course, the law has traditionally felt comfortable. Rights are also the fabric of the law. In practice the infringement of a right often finds a remedy in the form of a breach of a duty. In the case of humans and human values this may not be a major theoretical problem. Not so for environmental values - unless a duty to protect the environment is linked morally to a right that the environment should be protected. In other words, can conservation of nature and protection of the environment be justified not only because they are good outcomes of human behaviour but also because they are the right and proper things to do? This may well be the approach to adopt according to Baird Callicott. The priority accorded to economic growth and industrialisation over the last three or four hundred years - in contrast to more ecologically sensitive values recognised by certain earlier communities - was based upon the metaphysics of "early modem Western philosophers". 47 The "moral concept reposing at the core" of today's cultural values was to be found in the "intrinsic value, autonomy, and 44 45 46 47

Robert Goodin (1995) p 314. Robert Goodin (1995) p 315. Robert Goodin (1995) p 315. J Baird Callicott, Earth's Insights (University of California Press, Berkeley, 1994) pp 7-9. [2.130] 43

The Ethical Dilemmas of Environmental Law

PART I The Normative Context of Environmental Law

subject of debate. For the acceptance of ecocentrism and ecoj~stice, however,_ it is only necessary to internalise what has remained externalised m theones of Justice to date. 50

dignity of the individual, as glossed by Descartes, Hobbes, Locke" and others. 48 Most importantly, this gave rise to two approaches to issues of morality: • utilitarianism (first set out by Jeremy Bentham), which emphasises aggregate human welfare as a goal of individual action and public policy; and • deontology (first set out by Immanuel Kant), which emphasises human dignity as a basis for human rights. 49 A combination of human welfare and human rights presents a sound ethical foundation for the conservation of nature and the protection of the environment. If this is transposed into the language of jurisprudence, responsibility for the achievement of good environmental outcomes should be added to the traditional matrix of enforceable rights, duties, powers and liabilities. The ways in which environmental law is developing - both internationally and nationally - suggest that this may well be happening in the context of what emerges as an interdependent set of: • normative rules; • competence rules; • strategic rules; • regulatory rules; • liability rules; • market rules; • methodological rules; and • planning rules.

Towards ecological justice The debate about the ethical foundations of environmental law has ebbed and flowed over recent years between anthropocentrism and ecocentrism. Do human welfare and human rights dominate? What place is there for the intrinsic values of nature and ecosystems? The two are no doubt related. But how? In other words, what is the nexus between these two approaches? A doctrine of ecological justice has been emerging as a response to this question. This doctrine seeks to develop and expand a non-anthropocentric approach. The reasons are these: [2.140]

The main limitations of discoUise ethics are its own anthropocentric roots. If this tradition behind the rational discoUise goes unquestioned we will not be able to move beyond the Kantian and contractualist framework. In this framework, only moral agents count. From a non-anthropocentric perspective the limitation of moral theory to agents is unacceptable; rather it is enough that a being receives recognition as a moral subject. That such beings may not have the capacity to communicate (directly) or reciprocate moral favoUis should not matter. What should matter, instead, is the capacity of humans to not only act for themselves, but also for those who cannot act for themselves. In this way potentially all beings affected by environmental decisions, but not actively participating in the moral dialogue, would have their voice heard. Whether this concern for "the others" requires institutional representation - for example, through agencies of guardianship or trusteeship - or whether it can be internalised in some other way is an interesting

The doctrine of ecological justice thus seeks to internalise within a paradigm of ·ustice - an anthropocentric concept - the values of nature - an ecocentric concept. l How is it proposed that this be done? By incorporating in a theory of justice the three concerns facing humanity and the environment. These are: • concern for the poor; • concern for future generations; and • concern for the non-human natural world. "The concern for the poor (social justice)", it has been suggested, "represents the social dimension of ecological justice and can usually be termed intragenerational justice". si Then there is the concern for future generations. This, similarly, incorporates the notion of social justice for future generations and has been described as intergenerational justice. However "these two elements leave us with a crucial question". And the question is - "what do they mean with the respect to the environment?" 52 Perhaps two responses: • the integrity of the planetary ecosystem (the "natural stock"); and • our current knowledge about natural resources and ways to use them (the "capital stock"). 53 Intragenerational justice and intergenerational justice involve predictions for the future from what has happened in the past and from what is happening currently. If these two forms of justice are to be realised, how is it done? "The reasonable choice, therefore, is for a duty to pass on the integrity of the planetary system as we have inherited it (ecology integrity)." 54 Ecological integrity points to the third of these elements of ecological justice - namely concern for the non-human natural world. This emerges as the third element of ecological justice interspecies justice. 55 The natural world and the human world are accordingly brought together by the combination of intragenerational justice, intergenerational justice and interspecies justice. Together they form the doctrine of ecological justice. These elements are reflected in the concept of sustainability or more specifically ecologically sustainable development. It is such a notion of ecological justice that is emerging through the discourse of ethics. At the same time it may be seen not only to underpin but also to reflect the concept of sustainability. If a notion of ecological justice is emerging in this way, how does it interact with fundamental concepts of a legal system such as rights and duties? The idea of rights vested in non-human subjects is not new. As early as 1972 Christopher Stone commented: 50

Klaus Bosselmann, The principle of sustainability: transforming law and governance (Ashgate Publishing Ltd, Aldershot, 2008) p 96.

51

Klaus Bosselmann (2008) pp 97 and 98.

52

Klaus Bosselmann (2008) p 98.

53

Klaus Bosselmann (2008) p 98.

48

J Baird Callicott (1994) p 9.

54

Klaus Bosselmann (2008) p 98.

49

J Baird Callicott (1994) p 9.

55

Klaus Bosselmann (2008) p 99.

44 [2.140]

I CH 2

[2.140] 45

PART I The Normative Context of Environmental Law

Natural objects would have standing in their own right, through a guardian; damage to and through them would be ascertained and considered as an independent factor; and they would be the beneficiaries of legal awards. But these considerations only give us the skeleton of what a meaningful rights-holding would involve. To flesh out the "rights" of the environment demands that we provide it with a significant body of rights for it to invoke when it gets to court. 56

Neither conferring a status upon nature within the legal system nor conferring locus standi for the purposes of litigation is sufficient. In the absence of substantive rights associated with status and locus standi little has been achieved. According to Thomas Berry a set of legal relationships may emerge in this way: The universe is composed of subjects to be communed with, not primarily of objects to be used. As a subject, each component of the universe is capable of having rights. Every component of the Earth community, both living and nonliving, has three rights: the right to be, the right to habitat or a place to be, and the right to fulfill its role in the ever-renewing processes of the Earth community. 57

The attribution of personality to nature in this way and the conferment upon nature of these rights create a legal structure according to which nature is capable of sustaining legal relationships with other members of the legal community - in particular humans. It has been suggested by Jan Laitos that a right of nonuse of natural resources should be created. Thus: Natural resources should be protected by conferring on them a legally cognisable "right of nonuse". Such a right would legitimate the nonuse component of natural resources. This nonuse part of resources permits all natural organisms and entities to thrive, evolve, or play some role in the environmental health of this planet, independent of value to humans. 58

The conferment of legal rights on nature and on natural resources is not, as we shall see in Chapter 4, entirely a matter of jurisprudential speculation at this stage. Ideas such as these, nevertheless, are beginning to play a part in the ethical dilemmas facing human kind.

The Ethical Dilemmas of Environmental Law

• conflicting goals; • means-ends fluidity; and • ideological boundaries. 59 The first is a reference to values cast in sufficiently general terms to make them alleged1y intangible or unquantifiable. This renders them difficult to determine and to apply in particular sets of circumstances. The comment may be made that there is nothing unusual about this: the law has frequently had to resort to tests of reasonableness, foreseeability, possibility, probability or intention. According to Laurence Tribe, however, this undervalues the range of analytical skills available within a legal system. The second is a reference to conflicting goals. That is, one proposal or one project may seek to achieve a number of different outcomes and these outcomes may be in conflict. An example of this is the use of water for recreational purposes, commercial purposes or environmental purposes. This is no doubt true. But the objective of an environmental management system is taken more often than not to be sustainable development. This is a single outcome despite the fact that it involves the accommodation of a number of potentially conflicting interests in achieving it. Then there is the reference to means-ends fluidity. While the law has traditionally been concerned rather with means than with ends, clearly the two are linked. The suggestion is that the end results of a particular activity are often unclear although the means to achieve these outcomes may be clear and intelligible. Therefore, the end results become clear only as a result of going through the processes for the achievement of these goals - whatever they might be. It is easier for a legal system to indicate how a decision is to be reached rather than what decision is to be reached. Finally, there are ideological boundaries. To some extent this is a return to the ethical foundations of environmental law. It is best to use Laurence Tribe's own words:

ENVIRONMENT AND THE IAW

Policy analysts typically operate within a social, political and intellectual tradition that regards the satisfaction of individual human wants as the only defensible measure of the good, a tradition that perceives the only legitimate task of reason to be that of consistently identifying and then serving individual appetite, preference, or desire. This tradition is echoed as well in environmental legislation which protects nature not only for its own sake but in order to preserve its potential value for man. 60

The deficiencies of the law While conservation of the environment may be based upon an acceptable ethical foundation, it is altogether different to ask what function the law may perform in achieving conservation of the environment. This, too, is an issue of philosophical disputation. Laurence Tribe, for one, has argued that the levels of sophistication of legal analysis - at least those of traditional legal analysis - are too limited to be able to cope effectively with the protection and conservation of the environment. These limitations are both technical and ideological. In summary they are:

(2.150]

• fragile values;

The satisfaction of human needs is taken to be the ultimate or at least the principal goal and all other outcomes become irrelevant or less important. Once again, it is the objective of sustainable development to avoid such difficulties.

Human environmental values A human rights approach If these are some of the deficiencies inherent in environmental analysis, are they being confronted? And if so, how? Let us start where Laurence Tribe ended -

(2.160]

56

Christopher Stone, "Should trees have sta nding? - towa rd legal rights for natura l objects" (1972) 45 Southern California law Review 450.

57

Thomas Berry, Evening Thoughts: Reflecting on Earth as a Sacred Community (Sie rra Club Books, San Francisco, 2006) Append ix 21 items 3 and 5.

59

Laurence Tribe (1974) at 1317-1326.

58

Jan G Laitos, The Right of Nonuse (Oxford University Press, Oxford, 2012) p 201.

60

Laurence Tribe (1974) at 1325.

46 [2.150]

I CH 2

[2.160] 47

PART I The Normative Context of Environmental Law

with limited ideological boundaries. The satisfaction of human needs finds expression within a legal system through the recognition of human rights. It will be recalled that the foundational concepts of a legal system have traditionally been powers, liabilities, rights and duties. In a sense a collection of rights is a statement of values which are given substance by the imposition of duties enforced through the exercise of powers and the enforcement of liabilities. Rights exist without reference to outcomes. Traditionally rights have existed only for humans. There is little doubt that human rights inhere in individual human beings. However, can a group of individuals or a people - such as an indigenous community - have human rights in that capacity? Human rights are an expression of the values essential to the dignity of human beings. They find expression in the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966. Among these human rights are the rights: • of life, liberty and security of person; • of equality before the law; • to equal protection of the law without any discrimination; • to a nationality; • to freedom of thought, conscience and religion; and • to own property. 61 There is nothing on the face of it about nature or environment. There are, however, two more specific rights that are worth analysis in the present context. The first is Art 1(2) of the International Covenant on Civil and Political Rights 1966. 62 It states: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

There are a number of points to note. First, the right inheres in "all peoples" rather than in states within the international community. Secondly, the right is related to free disposition of natural wealth and resources. Thirdly, it is limited. One limitation is restricting the right to "their own ends" - a statement which some may see more as an enabling rather than a restrictive provision. The other limitation is the principle of mutual benefit. In either case, there is a distinctly utilitarian feeling about these limitations. Then there is Art 12(2)(6) of the International Covenant on Economic, Social and Cultural Rights 1966. 63 Paragraph 1 contemplates the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This is made more specific by para 2(6) which includes, among the steps necessary to be taken to achieve the full realisation of this right, "the improvement of all aspects 61

See, for example, Universal Declaration of Human Rights 1948, Arts 3, 71 15, 17 and 18. For the text see Ian Brownlie (ed), Basic Documents on Human Rights (Oxford University Press, Oxford, 1993) pp 21-27. [1980] ATS No 23. For the text see (1967) 6 ILM 368. [1976] ATS No 5. For the text see (1967) 6 ILM 360.

48 [2.160]

The Ethical Dilemmas of Environmental Law

I CH 2

of environmental and industrial hygiene". The significance of this provision is that there is a recognition of the right to the enjoyment of a certain standard of health. But this is achieved by improving environmental hygiene. Presumably this means the health of the environment. If this is so, this is a metaphorical attribution of health to the environment as a means of achieving health in humans. If the right to health is in itself not enforceable, it may be enforceable through this obligation. It would seem that, while there is no right to environmental health, the duty to improve environmental hygiene or health is linked to the right to human health. This is clearly an anthropocentric approach and also a reflection of a utilitarian philosophy. In 1994 the United Nations received a Report on Human Rights and the Environment to which was attached the Draft Declaration of Human Rights and the Environment. 64 The draft declaration recognised quite specifically that "sustainable development links the right to development and the right to a secure, healthy and ecologically sound environment". Accordingly Art 1 declared that human rights, an ecologically sound environment, sustainable development and peace were interdependent and indivisible. Then there followed in Arts 2 and 4 a statement of two rights in relation to the environment: • all persons have the right to a secure, healthy and ecologically sound environment; and • all persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs. In other words intragenerational equity and intergenerational equity. Significantly these rights were structured as rights to an environment of a certain kind. The preposition to is important: it implies an anthropocentric perspective. The preposition of would imply an ecocentric perspective. This simply reaffirms their status as human rights and not environmental rights. The draft declaration went on to describe further rights in relation to the environment in much more detail. However - and significantly - these rights were linked to two duties stated in Arts 21 and 22:

• all persons, individually and in association with others, have a duty to protect and preserve the environment; and • all states shall respect and ensure the right to a secure, healthy and ecologically sound environment.

The existence of these rights together with these duties points in the direction of the doctrine of common but differentiated responsibility for the environment to which reference is increasingly being made in this context. The draft declaration has suggested how human rights in relation to the environment may be structured. This does not amount to a right of the environment itself to be recognised and protected. Are there any indications that the law might be moving in this direction? United Nations Dra~ Declaration of Human Rights and the Environment 1994 at University of

Minnesota Human Rights Library, http://www1.umn.edu/humanrts/instree/1994-dec.htm viewed 15 October 2009. [2.160] 49

The Ethical Dilemmas of Environmental Law

PART I The Normative Context of Environmental Law

An environmental rights approach [2.170) So far, it would appear, there is no such thing as a human right in relation

to the environment or indeed any other kind of right in relation to the environment. There may be a right for all peoples to dispose of their resources based upon the principle of mutual benefit. Environmental conservation is not an obvious part of this principle. So what part does the environment play in this scenario of human rights? More specifically, where do environmental values fit in? There are possibly four answers to this question. The environment may have:

The Philippines Supreme Court Let us consider four examples. The first is the decision of the Supreme Court of the Philippines in the Minors Oposa case. 65 The case was about the preservation of rainforests in the Philippines. It was argued that deforestation was causing environmental damage and an order was sought from the court directing the cancellation of all existing timber licences and a prohibition of the grant of any future timber licences. A number of issues were raised but the essence of the case

[2.180)

was this: In a broader sense, this petition bears upon the right of Filipinos to a balanced and

• economic value;

healthful ecology which the petitioners dramatically associate with the twin concepts of "intergenerational responsibility" and "intergenerational justice". 66

• human value; • intrinsic value; and • metaphorical value. Can these environmental values be expressed as rights? If so, environmental values are recognised only indirectly through human rights. Is there any evidence of this? If the environment has economic or commercial value, then the power to exploit the resources of the environment is essentially a human right. It is moreover an incident of the right to own property. Is this an individual right or a communal right? To the extent that the legal system recognises what are traditionally called rights of property - particularly in relation to land - then it is of the essence of rights of property that they are vested in an identifiable person or an identifiable institution. In this case, all other things being equal, it is for that individual or that institution to deal with these assets as they think best in their own interests. Alternatively, if the resources of the environment are owned by the community at large, then it is no doubt the interest of the community that dictates what happens to these resources. The procedures by which the interests of the community are identified are an altogether different matter. But, either way, it would seem that the economic values of the environment are expressed in the form of human rights. Whether it is an individual or a communal right does not matter for present purposes. If it is an economic value, then it is a right to exploit rather than to conserve the environment perceived as an asset or resource. That is a human right. Human rights are a recognition, of course, not only of economic or commercial values but also - more importantly - of values reflective of the humanity and dignity of individual persons. Again these may be individual or communal. What is at issue, then, is the value that humans place upon the environment, not for economic purposes but in recognition of these other qualities. These other qualities may be aesthetic, spiritual, or cultural. A prospect of a mountain may be valuable because it is pleasing to the eye, uplifting to the spirits or indicative of historical associations with the area. Can this be described in any way as an environmental value? Or - better still - is it the foundation for an environmental right? These are difficult questions. If there is a right of this kind, then it may take one of many forms. Notwithstanding the importance of form, the notion of an environmental right as an indirect human right is beginning to emerge from the interstices of some legal systems. 50 [2.170]

I CH 2

There is no question that the foundations of these arguments were anthropocentric. First there was the reference to "the right of Filipinos" and secondly there was the reference to intergenerational equity. In other words this right attaches to human beings both now and in the future. The right to a healthy environment is thus a human right. The laws of the Philippines contain a number of references to rights of this kind. But the Supreme Court did not restrict itself to these. Such a right belongs to a different category of rights altogether for it concerns nothing Jess than self-preservation and self-perpetuation - aptly and fittingly stressed by the petitioners - the advancement of which may even be said to predate all governments and constitutions. 67

There is in this context a fundamental right to a healthy environment that exists independently of any specific legal prescription. Not only that: this right "carries 68 with it the correlative duty to refrain from impairing the environment". The existence of a duty may in practical terms be just as important as the existence of a fundamental right. And perhaps even more important.

The European Human Rights Court 69

The decision of the European Court of Human Rights in Lopez Ostra was concerned with Art 8 of the European Convention on Human Rights 1950. 70 It provides in paragraph 1:

[2.190)

Everyone has the right to respect for his private and family life, his home and his correspondence.

In this case a waste treatment plant had been built close to the home of the applicant in a town which had a heavy concentration of leather industries. Fumes and smells escaped from the plant and caused health problems to local residents. 65 66

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173. Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173 at 175 and 176.

67

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173 at 187.

68

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33 ILM 173 at 188.

69

Lopez Ostra v Spain (1994) 20 EHRR 277.

70

For the text see Ian Brownlie ( ed) (1993) pp 326-341. [2.190] 51

PART I The Normative Context of Environmental Law

The circumstances of this case were analogous to those underlying liability in nuisance and a number of issues were raised. But had Art 8 of the Convention been breached ? The court decided that it had been breached and it is the reason for this that is important. Naturally, severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health. 71 Significantly, therefore, a clean environment is important not only for the health of human beings but also for the enjoyment of their private and family life. A right to respect for private and family life is clearly a human right. But it is a human right that may be infringed by activities that are harmful to the environment. Indirectly there may be seen to be a right to a healthy environment: an inchoate environmental right. 72 The United Nations Human Rights Committee [2.200) There is in addition an emerging jurisprudence under Art 27 of the

International Covenant on Civil and Political Rights 1966. 73 It is the Human Rights Committee of the United Nations that provides guidance on the meaning of a provision such as this. Article 27 provides: In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.

In this case, again, the right is clearly a human right. For present purposes it is the right to enjoy the culture of the community. While it is not of general application for it applies only to certain minorities - it is the concept of culture that is important.

The Ethical Dilemmas of Environmental Law

I CH 2

have been issued, then this may constitute a violation of the authors' rights under article 27, in particular of their right to enjoy their own culture. 76 This acknowledges the relationship between culture and environment. Where the environment or nature is perceived to have cultural value for individuals within a community, then damage to the environment may constitute an infringement of the right to enjoy the culture of the community. The Supreme Court ofJustice of Colombia

Constitution of Colombia declares that the right to life is inviolable. Article 79 declares that every person has the right to enjoy a healthy environment. It goes on to impose a duty on the state to protect the diversity and the integrity of the environment. The Tradenet case in 1994 77 involved a shipload of imported toxic waste which was unloaded at t~e har~our in Cartagena._ C?nce ~he cargo had been inspected and found to contam toXIc waste, the adin1IUstrative authorities required the return of the cargo to its port of origin. This did not happen. It was argued on behalf of a number of residents in the community that the failure to comply with the requirement and the failure to enforce it infringed some of the rights in the constitution. Article 86 of the Constitution provides for an action for the protection of the rights in the Constitution. The petitioners were seeking protection of their individual rights. One of the issues was whether the rights to life, health and environment in the Constitution were fundamental. The Constitution recognised on the one hand the right to life and health and on the other hand the right to a healthy environment. What was the relationship between the two? Did the threat of pollution constitute a link between the two? The answer was clear: [2.210) Article 11 of the

There is no doubt that in the instant case there is a direct relation of causality between the right to life and health and the right to a healthy environment. 78

74

The case of Liinsman involved a number of reindeer breeders of Sarni ethnic origin in Finland. Their claim was that the quarrying of stone in an area covering 10 hectares on the flank of the mountain Etela-Riutusvaara would infringe their right to enjoy their culture in Art 27. As the committee pointed out: A state may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. 75

It was also pointed out that it is a matter of circumstance whether the impact of the proposed activities would constitute an infringement of the right. In the circumstances it was concluded that the right was not infringed but the committee added this further important comment:

Furthermore, if mining activities in the Angeli area were to be approved on a large scale and significantly expanded by those companies to which exploration permits 71

Lopez Ostra v Spain (1994) 20 EHRR 277 at 295.

72

See also Guerra v Italy (1998) 26 EHRR 357 where a similar approach was adopted.

73

[1980] ATS No 23. For the text see (1967) 6 ILM 368.

74

Liinsman v Finland (1995) 2 IHRR 287.

75

Uinsman v Finland (1995) 2 IHRR 287 at 295.

52 (2.200]

These were "fundamental rights" and capable of protection by the remedies made available by the constitution. For these reasons the right to a healthy environment entrenched in the constitution was capable of being infringed by a "threat of sudden environmental pollution". 79 Intergenerational Issues [2.220) There is a further issue associated with human rights that arises, at least by

implication, from these decisions. Human rights are for the most part considered to be those rights inhering in existing human beings. However if there is a relationship between human rights and the environment either through intergenerational equity or through cultural heritage, then it is not just the interests of existing human beings that are relevant but also the interests of past generations and future generations. This is so because both intergenerational 76

Liinsman v Finland (1995) 2 IHRR 287 at 296.

77

Fundepublico v Tradenet de Colombia SA (1994) 4 International Environmental Law Reports

152. Fundepub/ico v Tradenet de Colombia SA (1994) 4 International Environmental Law Reports

152 at 162. 79

Fundepublico v Tradenet de Colombia SA (1994) 4 International Environmental Law Reports

152 at 162. (2.220] 53

The Ethical Dilemmas of Environmental Law

PART I The Normative Context of Environmental Law

equity and cultural heritage conservation are three dimensional in time: past, present and future. But here it is generations of human beings that are in issue. Intergenerational equity ensures that the interests of future generations are recognised and taken into account in decisions being made now in just the same way that perceptions of culture - particularly in relation to cultural heritage - take into account the values of past generations in relation to the expectations of present generations and possibly even future generations. There are, of course, economic perspectives to these issues just as there are cultural perspectives. The critical point is that human rights are recognised and protected not only in respect of existing human beings but also in respect of those yet to be born. This is achieved by considering also the values of past generations. On the face of it this takes the concept of human rights somewhat further than might have been expected in traditional terms.

Intrinsic environmental values (2.230) Let us move now from the human perception of environmental values to

the intrinsic values inherent in the environment. It is the ethic of conservation in its various forms that justifies the conclusion that the environment is valuable for its own sake and for its own character and qualities. One practical problem is simply to find out what are these values. Nature cannot, even in the most extended metaphorical sense, explain what it is thinking or what are its perceptions. This can only be done in a practical sense by human beings putting themselves as far as possible into the position of nature. These are the sorts of arguments that have prompted commentators, such as Christopher Stone, as we have seen, to argue that natural objects may - probably should - have legal rights. This is undoubtedly a huge intellectual challenge for the discipline of law as Christopher Stone is suggesting not only a series of procedural rights whose beneficiary is the environment, but also a set of substantive standards forming environmental rights. These are the challenges of attribution of personality and of conferment of substantive rights that we have discussed. No such comprehensive regime has been recognised by the judicial system nor enacted by a legislature. The earliest and most important - probably the only judicial support for such an approach is the well-known dissenting judgment of Douglas J in the Sierra Club case 80 concerning a proposed development in Mineral King Valley in the Sierra Nevada mountains decided by the Supreme Court of the United States in 1972. His Honour concluded that "contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation". 81 There were, according to Douglas J, a number of instances of inanimate objects as parties in litigation. Any such approach is, of course, a fiction. The result was clear: So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modem technology and modem life. The river, for example, is the Jiving symbol of all the life it sustains or nourishes: fish, aquatic insects, water ouzels, otter, fisher, deer, Bo

81

Sierra Club v Morton 405 US 727 (1972). Sierra Club v Morton 405 US 727 at 741 and 742 (1972).

54 [2.230]

I CH 2

elk, bear, and all other animals, including man, who are dependent on it or enjoy it for its site, its sound or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water - whether it be a fisherman, a canoeist, a zoologist or a logger - must be able to speak for the values which the river represents and which are threatened with destruction.

82

These words may be a postscript to the future or they may represent a potential development of the legal system. Nevertheless, while the law may recognise rights, it is in practice duties and responsibilities that represent the medium through which rights are enforced. This raises the issue of transferred or metaphorical values. The environment may have value for its own sake and this value is attributed to the environment by humans. The recognition and enforcement of such a right is expressed or manifested through duties imposed by the legal system in support of that metaphorical value incorporated in a right. These duties are placed upon human beings. The beneficiaries of these duties are the relevant elements of the environment. It is in this way that there emerges a real environmental right - a right of the environment: the possessive case. A human right that recognises directly or indirectly an environmental value is only a mere right to the environment: the dative case. The practicalities of environmental rights in this sense are expressed through the approach of biocentrism. It treats all living things - including humans - as members of "Earth's Community of Life". 83 None is superior to another. This puts all living organisms at the centre of concern. This ethic involves respect for nature and reverence for life. Fundamentally the idea is that all living organisms have "inherent worth" which gives them moral substance. 84 But can humans identify the inherent worth of other, non-human living things? And so give them moral substance? According to Paul Taylor this is possible by viewing individual organisms as teleological centres of life: Our conceiving of each organism as a teleological center of life is our recognition of the reality of its existence as a unique individual, pursuing its own good in its own way. By developing the process of heightened awareness of it as the particular individual it is, we achieve a full understanding of the point of view defined by its good. We then have the capacity needed to make the moral commitment involved in taking the attitude of respect toward it, even though having this capacity does not necessitate our making the moral commitment. 85

But even more importantly: duties are owed to all living organisms. For example: • a duty not to harm any living organism (the rule of nonmaleficence); • a duty not to interfere with any living organism (the rule of noninterference); • a duty to keep faith with living organisms (the rule of fidelity); and

Sierra Club v Morton 405 US 727 at 743 (1972). Paul Taylor, Respect for Nature: a Theory of Environmental Ethics (Princeton University Press, Princeton, 1986) p 99. Paul Taylor (1986) p 71. Paul Taylor (1986) pp 128 and 129. [2.230] 55

The Ethical Dilemmas of Environmental Law

PART I The Normative Context of Environmental Law

• a duty to compensate any wronged living organism (the rule of restitutive justice). 8 6 These duties are of little consequence in any realistic sense unless they can be recognised and enforced through some form of institutional mechanism. Hence the importance of the proposed mechanisms for recognising and enforcing the legal rights of natural objects as argued by Christopher Stone. 8 7

Fundamental rights There is no evidence that any legal system has gone down the track advocated by Christopher Stone. However, in some jurisdictions there is beginning to emerge a notion of fundamental rights and duties. Much depends on the detail of the instrument. Let two examples suffice for the moment. The Constitution of the Republic of South Africa 1996 contains in Chapter 2 a series of provisions forming a bill of rights. Section 24 states: [2.240]

Everyone has the right (a)

to an environment that is not harmful to their health or well-being; and

(b)

to have their environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i)

prevent pollution and ecological degradation;

(ii)

promote conservation; and

(iii)

secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The substance of this right is placed grammatically in the dative case. It is fundamentally, therefore, a human right. It is clearly anthropocentric because of the reference to health and well-being and the reference to present and future generations. Most importantly there is also a right to have the environment protected. This, too, is a human right. It is the environment that is the subject matter of this right - even although the perspective is anthropocentric. It is in this way a right to an environment of a particular quality. There is no duty associated with this right. That may not matter: courts have on occasion implied a duty out of a right. The Draft International Covenant on Environment and Development takes a different approach. 88 Part II contains a set of fundamental principles and one of these is set out in Art 2: Nature as a whole warrants respect. The integrity of the earth's ecological systems shall be maintained and restored. Every form of life is unique and is to be safeguarded independent of its value to humanity.

There is much of substance in this article. Perhaps even more important is the form in which it is expressed. The first sentence is essentially a statement of value. Nevertheless it comes close to suggesting that nature must be respected. If it were 86 87 88

Paul Taylor (1986) pp 172-192. See above [2.140). Commission on Environmental Law of the International Union for the Conservation of Nature, Dra~ International Covenant on Environment and Development, (3rd ed, Gland and Cambridge, International Union for the Conservation of Nature, 2004).

56 (2.240]

I CH 2

50 expressed, it would constitute a duty. Nevertheless nature is cast as the beneficiary of the duty, although there is no specific reference to any individuals upon whom this duty is placed. This is important because there is no reference to human beings in the way the duty is prescribed. Then there is a much more positively stated duty. The integrity of the earth's ecological systems shall be maintained. Once again the subject matter of the duty is clear and there is no reference to who or what sustains this duty. The same is true of the third sentence. Every form of life is to be safeguarded. This is a duty expressed passively. This is reinforced by the last words in the sentence independent of its value to humanity. Humanity is taken out of the formal structure created by this article. It plays no part. The provision focuses exclusively upon nature. It creates a right of the environment.

CONCLUSION The preceding analysis indicates that the orthodox classification of the law as an interlinked set of powers, liabilities, rights and duties is inadequate. Robert Goodin has suggested that public policies based upon concepts of the welfare of the community are a satisfactory foundation for the application of doctrines of utilitarianism. 89 These are supported in more strictly legal terms by notions of responsibility. Mark Sagoff has similarly resorted to a concept of responsibility as an extension of duty. 90 He found a non-utilitarian rationale in the form of an obligation. The obligation to preserve nature in his view is an obligation to cultural traditions. There is no need to find a benefit for humanity. The obligation, it would appear, exists by itself. In other words an inchoate right of the environment. Each of these commentators, however, has recognised the need for some kind of legal framework within which these ethical foundations can have effect. Mark Sagoff expressed it like this in relation to his own jurisdiction: [2.250]

People have a right, moreover, at least to ensure the existence of places like Sequoia National Park and to go there if they can, without having to do the usual battle with automobiles. They can demand that the mountains be left as a symbol of the sublime, a quality which is extremely important in our cultural history, rather than be turned into an expression of the soft life, which is not. The protection of the symbols - the institutions as we have said - of our cultural tradition is a condition for the maintenance of other traditions - particularly the legal and political tradition to which our culture gives life. Accordingly we need to respect these symbols as well as, and on the same grounds as we respect our legal and political rights. The safeguards appropriate to environmental policy, then, are not to be found in administrative codes and procedures only; we need restraints of a more dramatic and decisive kind. These must be as strong as those which protect our most fundamental rights. If restraints on the exploitation of our environment are to be adequate, then, they must be found in the Constitution itself, either as a forthright basis for statutory action - placing certain national paradigms in trust, for example - or simply as the national guarantor of those structures and relations necessary to maintain the American nation. 91

See above [1.90) and [2.120). See above [2.100] and [2.110). Mark Sagoff (1974) at 266. (2.250] 57

PART I The Normative Context of Environmental Law

While the ethic of conservation can be justified, it needs to be given effect through fundamental legal norms. There is thus talk of people, people's rights, human rights, fundamental rights, constitutional rights and other forms of legal guarantee - even environmental rights. But the subject matter of these guarantees is now not so much the interest of humans in the environment as the environment itself. The approach advocated by Robert Goodin is international rather than national in its perspective. He argues that the normative structure required for a regime of shared responsibilities will not happen automatically. "Politically", he says, "we must start from where we find ourselves, and that is in a world of sovereign states". 92 And any regime of shared responsibilities can come about only if it is "recognised by nations themselves, through treaties and other similar international instruments". 93 International instruments of this kind derive from the exercise of sovereignty and the consequential power to enter into agreements. But all of this can be undone. So something more is needed. Thus: Under regimes based directly upon notions of shared responsibilities, by contrast, the responsibilities are regarded instead as foundational. Having in that way an existence independent of the actions of sovereign states, they cannot simply be revoked at the pleasure of the states concerned in quite the same way that responsibilities deriving merely from treaties typically can. 94

It is thus the notion of responsibility for achieving an outcome that lies at the foundation of the emerging doctrines of contemporary environmental law. There is more to it than rights and duties - although they are important. This notion is a blend of utilitarianism directed at a non-human benefit or outcome coupled with an ideal of intrinsic environmental value. While an ethic of conservation may be justified in various ways, the essential conundrum for a legal system, either international or national, is to find a form in which it can be meaningfully expressed, recognised and enforced. Is there such a grund norm? Can there realistically be such a grundnorm? Is there, in other words, a right of environment and can the legal system recognise and protect it?

CHAPTER 3 The International Framework of Environmental Law

THE FOUNDATIONS OF INTERNATIONAL ENVIRONMENTAL LAW

The principle of permanent sovereignty While a regime of shared responsibilities may well be the direction in which international environmental law is heading, 1 its starting point remains firmly the principle of the permanent sovereignty of a state over its natural resources. This principle is the foundation upon which international economic arrangements are constructed. Although it is no doubt true that a state has always had power to regulate activities within its territorial jurisdiction, the increasingly international perspectives of economic activity during the 19th and 20th centuries have led to theoretical and practical disputes about the extent of this principle. When referring to the development of the principle during this period, it has been stated:

[J.10]

The principle of permanent sovereignty generated much controversy betwee~ the capital exporting and capital importing countries with regard to the question of limits imposed by international law upon the power of the host State to control ali~n economic interests within their territorial jurisdiction; the outcome necessarily reflected the balance of power between the two groups of States and constituted the "practice" at the basis of such legal institutions as diplomatic protection and much of 2 the elements of State responsibility.

The formal emergence of the principle during the second half of the 20th century was in many respects a response of the international community at large to the increasingly unacceptable colonial policies of earlier generations. The first steps taken to recognise the principle were in the form of resolutions of the United Nations General Assembly. For example, on 12 December 1974 it was resolved that "every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities". 3 In this form, the principle is very much a rule of competence. The concerns prompting this approach by the United Nations General Assembly have been described as the "economic development of underdeveloped countries" and the "human rights and self-determination of

92 93 94

Robert Goodin (1995) p 317. Robert Goodin (1995) p 317. Robert Goodin (1995) p 318.

58 [2.250]

3

See above [1.90 ]. s B Chowdhury, "Permanent sovereignty over natural resources" in Paul de Waart, Paul Peters and Erik Denters (eds), International Law and Development (Martinus Nijhoff Publishers, Dordrecht, 1988) p 61. United Nations General Assembly Reso lution No 3281(xxix), Art 2(1). For the text see (1975) 14 ILM 251 . [3.10] 59

PART I The Normative Context of Environmental Law

The International Framework of Environmental Law

4

peoples". The principle itself is supported by a further set of principles: in particular the idea of sovereign equality and the responsibility of states to co-operate. In more practical terms these principles are manifested in a range of more specific rights of a state. These include the rights to:

men, who gathered its fruits at their will, without limitation or control. You know that even today dreamers believe it possible to bring back humanity to that golden age. The sea, however, like the earth, has become small for men, who, like the hero Alexander, and no less ardent for labor than he was for glory, feel confined in a world too narrow. Our work is a first attempt at a sharing of the products of the ocean, which has hitherto been undivided, and at applying a rule to things which escaped every other law but that of the first occupant. If this attempt succeeds, it will doubtless be followed by numerous limitations, until the entire planet - until the waters as well as the continents - will have become the subject of a careful partition. Then, perhaps, the conception of property may change amongst men. 8

• regulate; • exercise authority; • legislate; • impose taxes; • terminate or revise the arrangements; • development;

Some 80 years later the International Court of Justice, equally concerned about the possible depletion of fisheries resources, formulated a much more specific obligation in relatively traditional legal language:

• nationalise coupled with the duty to pay compensation;

Both states have an obligation to take full account of each other's rights and of any fishery conservation measures the necessity of which is shown to exist in those waters. It is one of the advances of maritime international law, resulting from the intensification of fishing, that the former laissez-faire treatment of the living resources of the high seas has been replaced by a recognition of a duty to have due regard to the rights of other states and the needs of conservation for the benefit of all. Consequently, both parties have the obligation to keep under review the fishery resources in the disputed water and to examine together, in the light of scientific and other available information, the measures required for conservation and development of equitable exploitation of these resources. 9

• have disputes settled peacefully; and • be treated in good faith.

5

Yet while permanent sovereignty is in theory inalienable, its exercise may be limited or restricted if a state so decides in exercise of its discretionary powers. In other words, the emerging set of rules of limitation upon the exercise this rule of competence.

Early environmental concerns [3.20] On the face of it, the principle of permanent sovereignty appears to be without qualification. For example, it is not overridden by human rights. Thus Art 47 of the International Covenant on Civil and Political Rights 1966, 6 notwithstanding it refers to rights of peoples rather than rights of states, provides:

Nothing in the present covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.

While there was a general obligation to conserve the resources of the environment - even if the law was unclear about its application and enforcement - there emerged in 1941 an implied duty to protect the environment in consequence of the recognition of the liability of a state for any transboundary environmental damage caused by activities within that state. The Tribunal in the Trail Smelter Arbitration expressed it even more mundanely: Under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. 10

But what about environmental matters rather than human rights? Patricia Birnie, Alan Boyle and Catherine Redgwell have summarised the position in these words: Having started as a system of rules limited largely to state responsibility for transboundary harm, resource allocation, and the resolution of conflicting uses of common spaces, international law now accommodates a preventive and precautionary approach to the management of environmental risk and the protection of the environment on a global level. 7 The need to conserve the resources of the seas was recognised as early as 1893 in the Behring Sea Fur Seals Arbitration. The President of the Tribunal expressed the principle in the elegant language of the philosopher: Hitherto the nations were agreed to leave out of special legislation the vast domain of the seas, as in times of old, according to their poets, the earth itself was common to all

I CH J

Even then, however, there was no particular focus on the environmental consequences of the activities of states. This has now changed.

Contemporary environmental perspectives The development of international controls [3.30] The duty placed by the International Court of Justice upon states to take account of the rights and interests of other states has been developed by a complex set of international arrangements over the last 30 years. 11 International law has expanded in a number of ways:

4

NJ Schrijven, "Permanent sovereignty over natural resources versus the common heritage of mankind" in Paul de Waart, Paul Peters and Erik Denters (eds), International Law and Development (Martinus Nijhoff Publishers, Dordrecht, 1988) p 87.

5

SB Chowdhury (1988) pp 80-83.

6

[1980) ATS No 23. For the text see (1967) 6 ILM 368.

10

(1941) 1 International Environmental Law Reports 231 at 310.

7

PW Birnie, A E Boyle and C Redgwell, International Law and the Environment (3rd ed, Oxford University Press, Oxford, 2009) p 39.

11

See generally, D E Fisher, Legal Reasoning in Environmental Law (Edward Elgar, Cheltenham, 2013) Chs 8 and 9.

60 [J.20)

8

(1893) 1 International Environmental Law Reports 43 at 78.

9

Icelandic Fisheries (Jurisdiction) Case [1974] IUR 3 at 200.

[3.30] 61

The International Framework of Environmental Law

PART I The Normative Context of Environmental Law

• by recognising a rapidly increasing range of rights in relation to the environment; • by imposing upon states duties to take action in relation to recognising and enforcing these rights; and • by putting in place supporting strategies and procedures. These arrangements take many forms and seek to achieve a range of different outcomes. While the focus of international environmental law was originally upon the marine environment, 12 it has expanded rapidly to deal with an increasing range of issues including: • the use of ozone-depleting substances; 13 • the emission of greenhouse gases; 14 • the conservation of biodiversity; 15 and • the consequences of desertification. 16 Control of the causes and effects of climate change lies at the centre of several of these arrangements. The complexity of the global environment is leading to increasing complexity in the rules of international law that seek to protect the global environment. International environmental law discloses a number of particular features. The sovereignty of states over their resources and over their environment remains the foundation of the system. However the exercise of this right is limited by an expanding array of legal instruments of various kinds. These instruments range from statements of policy and strategy by international agencies, through declarations of the General Assembly of the United Nations and through analyses by the Internatioal Court of Justice to bilateral, multilateral and global agreements. These agreements contain statements of objective, statements of principle, statements of expectation and aspiration, duties of a procedural nature and substantive obligations. While not all of these are, at least in theory, enforceable, they comprise a set of legal instruments of challenging complexity. The management of ecosystems generally discloses permissive and restrictive features or positive and negative features. More technically, rules of competence and rules of limitation. Both are equally important. Yet the emphasis of the law is often upon the restrictive or negative features. So it is with international environmental law. While the basis of international environmental law is the principle of permanent sovereignty, it is now closely circumscribed by a range of policies, principles and outcomes in the form of legal and paralegal rules. The rights and interests of individuals are affected as much as the rights and interests of states. The system is embracing responsibility much more positively. 12 13 14 15 16

United Nations Convention on the Law of the Sea 1982 (1994) ATS No 31. For the text see (1982) 21 ILM 1261. Vienna Convention for the Protection of the Ozone Layer 1985 [ 1988) ATS No 26. For the text see (1987) 26 ILM 1529. United Nations Framework Convention on Climate Change 1992 (1994) ATS No 2. For the text see (1992) 31 ILM 848. United Nations Convention on Biological Diversity 1992 [1993) ATS No 32. For the text see (1992) 31 ILM 818. Paris Convention to Combat Desertification in Those Countries Experiencing Drought and/or Desertification, Particularly in Africa 1994. For the text see (1994) 33 ILM 1328.

62 [3.30)

I CH 3

The four stages of development Let us concentrate for the moment, then, upon the restrictive feature_s of international environmental law. It controls the activities of states and potentially their citizens in three different ways:

[J. 401

• it controls their activities that take place beyond the territory and the

jurisdiction of the state; • it controls their activities that take place within the territory and the jurisdiction of the state but have an effect beyond the territory or the jurisdiction of the state; and • it controls their activities within the territory and the jurisdiction of the state.

It is the last of these that is the most controversial and potentially the most significant. However, let us look at some examples. Despite the dangers associated with broad generalisations, it will be helpful to consider the four stages by which international environmental law has developed over the last 30 or 40 years. The first stage focussed upon its permissive nature. Although a state might be liable for damage caused by activities within the 17 territory of the state to property outside the territory of the state, international arrangements about the management of natural resources said nothing about the environment. Concern about the environment led to the second stage. During the 1960s the international community reacted to vessel-sourced pollution of the 18 marine environment. This applied in the first instance to oil pollution, then to other forms of pollution of the marine environment, 1 9 and finally to all sources of harm to the marine environment including onshore activities. 20 None of these controls, however, limited the right of the state to manage the natural resources and the environment located within the territory and jurisdiction of the state. The third stage of development focused upon the effects of activities rather than the activities themselves. In this case these effects manifested themselves beyond the territory or the jurisdiction of the state. One example relates to the management of shared natural resources. One of the principles for the conservation of shared natural resources promoted by the United Nations environment program in 1978 was this: It is necessary for each state to avoid to the maximum extent possible and to reduce to the minimum extent possible the adverse environmental effects beyond its jurisdiction of the utilisation of a shared natural resource so as to protect the environment, in particular when such utilisation might: (a)

cause damage to the environment which could have repercussions on the utilisation of the resource by another sharing state;

(b)

threaten the conservation of a shared renewable resource;

17

For example, the Trail Smelter Arbitration. See United States of America v Canada (1941) 1 International Environmental Law Reports 231.

18

Brussels Convention on Civil Liability for Oil Pollution Damage 1969 (1984) ATS No 3. For the text see (1970) 9 ILM 45. London Convention for the Prevention of Pollution from Ships 1973; for the text see (1973) 12 ILM 1319: London Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 [1985) ATS No 16; for the text see (1972) 11 ILM 1294. United Nations Convention on the Law of the Sea 1982 [1994) ATS No 31, Part XII. For the text see (1982) 21 ILM 1261.

19

20

[3.40] 63

PART I The Normative Context of Environmental Law

The International Framework of Environmental Law

endanger the health of the population of another state. 21

(c)

The protection of the environment was one of the elements of the system for managing shared natural resources. There have, in addition, been an increasing number of international agreements restricting activities within states where these activities might have a detrimental environmental effect beyond the territory or the jurisdiction of the state in question. These have included controls upon a number of activities including: • the sources of long-range transboundary air pollution; 22 • the use of ozone-depleting substances; 23 • the transboundary movements of hazardous wastes and the disposal of hazardous wastes; 24 and • international trade in endangered species of wild fauna and flora.

25

The activities controlled in this way take place within the territory or the jurisdiction of a state. Nevertheless it is the environment outside the territory or the jurisdiction of the state that is protected. The environment within the territory or the jurisdiction of the state may incidentally be protected. That would be a mere inadvertent effect of these controls. It is perhaps the fourth and last stage of development that is doctrinally the most significant. Activities within the territory and the jurisdiction of a state are restricted even if the effect of these activities is limited geographically to the territory or the jurisdiction of the state where the activity takes place. There are now at least four instances of this: • the protection of the world cultural and natural heritage; 26 • the conservation of wetlands; 27 • the conservation of biological diversity; 28 and • the prevention of desertification and the mitigation of the effects of drought. 29

21

United Nations Environmental Programme, Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, Principle 3(3). For the text see (1978) 17 ILM 1098.

22

Geneva Convention on Long-Range Transboundary Air Pollution 1979. For the text see (1979) 18 ILM 1442. Vienna Convention for the Protection of the Ozone Layer 1985 [1988] ATS No 26. For the text see (1987) 26 ILM 1529. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989 [1992] ATS No 7. For the text see (1989) 28 ILM 657. Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 [1976] ATS No 29. For the text see (1973) 12 ILM 1088. Paris Convention for the Protection of the World Cultural and Natural Heritage 1972 [1975] ATS No 47. For the text see (1972) 11 ILM 1358. Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 [1975] ATS No 48. For the text see (1972) 11 ILM 963. United Nations Convention on Biological Diversity 1992 [1993] ATS No 32. For the text see (1992) 31 ILM 818. Paris Convention to Combat Desertification in Those Countries Experiencing Drought and/or Desertification, Particularly in Africa 1994. For the text see (1994) 33 ILM 1328.

24 25 26 27 28 29

64 [3.40]

I CH 3

Indeed Art 4 of the convention about biological diversity specifically recognises that its provisions apply in areas within the limits of the national jurisdiction of the states who have accepted their obligations under this convention.

Limitations upon sovereignty The existence of self-imposed restrictions upon the exercise of sovereignty does not infringe the notion that sovereignty is inalienable. 30 Some arrangements have attempted to clarify the relationship between the principle of permanent sovereignty and the restrictions which these arrangements place upon its exercise. For example, para 3 of Art 2 of the Ramsar Convention on Wetlands of International Importance 1971 31 provides that "the inclusion of a wetland in the list does not prejudice the exclusive sovereign rights of the contracting party in whose territory the wetland is situated". Clearly sovereign rights are unaffected except to the extent that the convention specifically relates to wetlands. Beyond that it is unclear. Paragraph 1 of Art 6 of the Paris Convention for the Protection of the World Cultural and Natural Heritage 1972 32 specifically acknowledges the sovereignty of the state in whose territory the heritage is situated. However the convention goes on to provide that the states, parties to the convention, recognise that the heritage protected by it constitutes world heritage and that it is the duty of the international community as a whole to co-operate in protecting it. A duty is therefore placed upon the international community at large and not just upon states that are parties to the convention. However, it is a procedural rather than a substantive duty. These examples of restrictions upon the sovereignty of a state derive from arrangements freely entered into by the state in question. Another fundamental principle is emerging through the interstices of international environmental law namely sustainable development. A number of recently negotiated sets of international arrangements reflect or impliedly acknowledge the concept of sustainable development. It cannot now be ignored: (J.50]

The concept of "sustainable development" had already begun to emerge prior to the UN Conference on Environmental Development in 1992, but its defining role in the evolution of international law and policy on the protection of the environment secured near universal endorsement at Rio. 33

The function and status of sustainable development in international law remain controversial. However its impact is clear: The most potentially far-reaching aspect of sustainable development is that for the first time it makes a state's management of its own domestic environment a matter of international concern in a systematic way. 34

It is therefore important for Australia as much as for its own sake.

30

SR Chowdhury (1988) pp 62-64.

31 32

[1975] No 48. Forthe text see (1972) 11 ILM 963. [1975] No 47. For the text see (1972) 11 ILM 1358. PW Birnie, A E Boyle and C Redgwell (2009) p 123. PW Birnie, A E Boyle and C Redgwell (2009) p 124.

33 34

[3.50] 65

The International Framework of Environmental Law

PART I The Normative Context of Environmental Law

Sustainable development In a series of comments made extrajudicially as early as 1987 the president of the International Court of Justice said this about the relationship between the right to development and the concept of sustainability:

[J.60)

Uruguay about pulp mills on the river Uruguay 39 The court analyse~ the rules of · ternational environmental law in the context of the Statute of the River Uruguay ~75 which established the legal regime for the use and management for the River Uruguay. The court reached three significant decisions. This is the first: A state is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing 40 significant damage to the environment of another state.

The imperative of sustainability has to be recognised in relation to any right to development. Given these considerations, there would seem to be three broad elements of sustainability which qualify the right to development and which can be Listed as follows:

The second was the recognition of an obligation to act with due diligence. In these

(i)

sustainability in relation to resources available for present and future generations;

words:

(ii)

sustainability in relation to an adequate and healthy environment;

(iii)

sustainability in relation to the community - the concept of "international commons" and safeguarding the "common heritage of mankind". 35

While this may be seen more as a statement of policy rather than a rule of law, it was a mere 10 years later that the vice-president of the International Court of Justice concluded that "the principle of sustainable development is thus a part of modem international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community". 36 Thus it is a principle but probably not a rule of international law. The issue which the vice-president identified is essentially the problem thrown up by the doctrine of utilitarianism. Sustainability became the principle according to which conflicts about development of resources and protection of the environment should be resolved. The vice-president made the point very clearly: The problem of steering a course between the needs of development and the necessity to protect the environment is a problem alike of the law of development and the law of the environment. Both these vital and developing areas of law require, and indeed assume, the existence of a principle which harmonises both needs. To hold that no such principle exists in the law is to hold that current law recognises the juxtaposition of two principles which could operate in collision with each other, without providing the necessary basis of principle for their reconciliation. The untenability of the supposition that the law sanctions such a state of normative anarchy suffices to condemn a hypothesis that leads to so unsatisfactory a result. Each principle cannot be given free rein, regardless of the other. The law necessarily contains within itself the principle of reconciliation. That principle is the principle of sustainable development. 37

The vice-president in this case went on to indicate that the principle of sustainable development - to be effective - involved a number of complementary concepts. These included environmental protection as a principle of international law and the principle of continuing environmental impact assessement. 38 The transformation of these principles into rules was acknowledged by the International Court of Justice in 2010 in the dispute between Argentina and

35

I CH J

It entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities 41 undertaken by such operators, to safeguard the rights of the other party.

A third was the emergence of environmental impact assessment as a requirement. A requirement which emerged from a practice which had: Gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. 42

The avoidance of significant environmental damage has emerged in the form of an operational obligation and this is supported by the obligations to act with due diligence and to undertake environmental impact assessment. International environmental law would now seem to be based upon two principles - the principle of the permanent sovereignty of states over their natural resources and the principle of sustainable development. These principles are not necessarily in conflict, although in particular circumstances one might represent a limitation upon the exercise of the other. While this may be true in general terms, it also seems to be the basis upon which the Draft International Covenant on Environment and Development 43 has been formulated. This draft, prepared by the Commission on Environmental Law of the International Union for the Conservation of Nature, has been presented to the United Nations but it does not constitute an official legal instrument in any sense. Nevertheless, its structure and detail reflect the direction in which international law is moving, if not the current set of rules on this topic. Its structure is simple. It contains an objective, a set of fundamental principles, a series of general obligations and a more detailed group of specific obligations. According to Art 1 the objective is to achieve environmental conservation as an indispensable component of sustainable development through establishing integrated rights and obligations. It does just that. Although Art 11 appears under 39

Pulp Mills (Merits) case (2010) 49 ILM 1123.

Nagendra Singh, "Sustainable development as a principle of international law" in Paul de Waart, Paul Peters and Erik Denters (eds), International law and Development ( Martinus Nijhoff, Dordrecht, 1988) p 5.

40

Pulp Mills (Merits) case (2010) 49 ILM 1123 at 1151.

41

Pulp Mills (Merits) case (2010) 49 ILM 1123 at 1150 and 1165.

42

Pulp Mills (Merits) case (2010) 49 ILM 1123 at 1166 and 1167.

Judgment in the Case Concerning the Gabcikovo-Nagymaros Project (1998) 37 ILM 162 at 207.

43

Commission on Environmental Law of the International Union for the Conservation of Nature, Dra~ International Covenant on Environment and Development (3rd ed, Gland and Cambridge, International Union for the Conservation of Nature, 2004).

Judgment in the Case Concerning the Gabcikovo-Nagymaros Project (1998) 37 llM 162 at 205.

D E Fisher (2013) p 224.

66 [J.60]

[J.60] 67

PART I The Normative Context of Environmental Law the heading of general obligations, it is the fundamental provision that effectively integrates rights and obligations. It provides in paragraph 1: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to utilise their resources to meet their environmental and sustainable developmental needs and the duty to ensure that activities within their jurisdiction or control do not cause potential or actual harm to the environment of other States or of areas beyond the limits of national jurisdiction. And in paragraph 2: States have the right and the duty, in accordance with the Charter of the United Nations and the principles of international law, to protect the environment under their jurisdiction from significant harm caused by activities outside their national jurisdiction. If such harm occurs, they are entitled to appropriate remedies. Paragraph 1 in all likelihood restates the existing rules of international law. Paragraph 2 goes further to create a right and a duty to protect the environment of the state under the jurisdiction of that state. Certainly this is the direction in which international law is moving in a number of more discrete areas. This reflects a general obligation to that effect. Of equal importance is that these duties are juxtaposed to the sovereign right of states to use their resources as they see fit. But this is itself restricted - to meet their environmental and sustainable developmental needs. The remaining paragraphs of Art 11 go on to provide in more detail how these duties are discharged. Sustainable development is the ultimate goal achieved through this interdependent set of rights and duties.

THE PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW [J.70] While international law provides a structural framework for achieving

sustainable development along the lines described in the previous paragraphs, it is the detail contained in the variety of relevant legal instruments that provides substance to the law. These are found in instruments of policy or instruments of law. Instruments of policy, while not enforceable as such, often reflect the general principles recognised by the international community. And so it is in the case of the major instruments of policy that have moved international law in the direction of sustainable development.

Instruments of policy

The International Framework of Environmental Law

I CH 3

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. Significantly this is cast as a fundamental human right. The environment is simply the context within which this right exists. The environment, moreover, is simply one of a certain quality that permits a life of dignity and well-being. All of this is anthropocentric. And so too is the solemn responsibility for intergenerational equity. It is noteworthy that the second element of Principle 1 is described not as a duty or an obligation to protect the environment but as a responsibility. Most of the remaining principles express the strategies and policies by which this fundamental right is recognised and protected. These provisions assume a range of different forms. A small number impose an obligation upon states; an active obligation. Significantly many are cast as what may be termed passive obligations. This means that the obligation is not placed as a grammatical predicate upon any particular person or institution - for example a state - rather that the obligation is linked as a grammatical subject to the element of the environment to be protected. Passive obligations are thus of unlimited or general application and effect. By way of some examples: • Principle 2 creates a passive obligation for the natural resources of the earth to be safeguarded; • Principle 3 creates a passive obligation for the capacity of the earth to produce vital renewable resources to be maintained; • Principle 5 creates a passive obligation for the non-renewable resources of the earth to be employed so as to prevent their future exhaustion; • Principle 6 creates a passive obligation for the discharge of toxic substances to be halted so as to prevent serious or irreversible damage to ecosystems; • Principle 7 places an active obligation on states to take all possible steps to prevent pollution of the seas; • Principle 12 creates an expectation for resources to be made available to preserve and improve the environment; • Principle 13 creates an expectation for states to adopt an integrated and co-ordinated approach to their development planning; and • Principle 15 creates a passive obligation for planning to be applied to human settlements and urbanisation with a view to avoiding adverse effects on the environment.

The Rio Declaration

The Stockholm Declaration

[J.90] The strategic principles of international environmental law established in

[J.80] The fundamental concepts of contemporary international environmental

1972 then ,moved in the direction of sustainability. The focus of the Stockholm Declaration had been the human environment: more particularly the fundamental

law are generally taken to have been formulated at the United Nations Conference on the Human Environment held at Stockholm in 1972 out of which there emerged the Stockholm Declaration. 44 The philosophical rationale of the declaration lies in Principle 1:

44

Declaration of the United Nations

Conference on the Human Environment 1972. For the text

right of human beings to an environment of a particular quality. A number of the passive obligations in the Stockholm Declaration - those about natural resources in particular - foreshadowed the development of the law over the next 20 years. Some of these obligations hinted at the sustainability of natural resources: leading ultimately to the notion of sustainable development agreed upon at the United Nations Conference on Environment and Development held at Rio de Janeiro in

see (1972) 11 ILM 1416. 68 [3.70]

[3.90] 69

The International Framework of Environmental Law

PART I The Normative Context of Environmental Law

1992 and formalised in the Rio Declaration. 45 Importantly, while the approach of the Stockholm Declaration had been largely the creation of passive obligations, the focus of the Rio Declaration was the imposition of active obligations upon states. These active or positive obligations, however, were created within a framework of rights and responsibilities. The fundamental right proclaimed by the Rio Declaration is in Principle 1 which states: Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.

The first sentence reiterates the anthropocentric focus of the declaration. It is the second sentence that declares the right. There is no question that it is a human right because of the reference to life. The restrictive feature is the need for the life of human beings to be in harmony with nature. The right proclaimed in the second sentence of Principle 1 is expanded fmther by Principles 3 and 4. Principle 3 creates a passive obligation for the right to development to be fulfilled so as to meet intragenerational and intergenerational needs. The right to development is thus taken for granted. But it is restricted by intragenerational equity and by intergenerational equity. The effect of Principle 3 is to limit the ways in which the right may be satisfied. In similar fashion Principle 4 states how sustainable development can be achieved - in this case by reference to environmental protection. The achievement of sustainable development is further facilitated by the creation of an expectation for states to reduce and eliminate unsustainable patterns of production and consumption in accordance with Principle 8. Environmental protection is assisted by the creation of a passive obligation for the precautionary approach to be widely applied by states in accordance with Principle 15. The obligations - active and positive - placed upon states are extensive and among the most important are: • the obligation in Principle 11 to enact effective environmental legislation; • the obligation in Principle 13 to develop national law regarding liability and compensation for the victims of pollution and other environmental damage; • the obligation in Principle 18 to notify immediately other states of any natural disasters likely to produce sudden harmful effects on the environment; • the obligation in Principle 19 to provide prior and timely notification and relevant information to potentially affected states on activities that may have a significant adverse transboundary environmental effect; and

Australia is a party to a large number of international environmental conventions. Some of these are global, others are regional and a small number are between Australia and one other state. The multilateral conventions to which Australia is a party include:

[J.100)

• the Ramsar Convention on Wetlands of International Importance 1971; 46 • the Paris Convention for the Protection of the World Cultural and Natural Heritage 1972; 47 • the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973; 48 • the Bonn Convention on the Conservation of Migratory Species of Wild Animals 1979; 49 • the Vienna Convention for the Protection of the Ozone Layer 1985; 50 • the Montreal Protocol on Substances that Deplete the Ozone Layer 1987; 51 • the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989; 52 • the United Nations Convention on Biological Diversity 1992; 53 and • the United Nations Framework Convention on Climate Change 1992. 54 Regional conventions to which Australia is a party include: • the Apia Convention on Conservation of Nature in the South Pacific 1976; 55 and • the Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986. 56 Bilateral agreements include: • the Agreement between the Government of Japan and the Government of Australia for the Protection of Migraton; Birds and Birds in Danger of Extinction and their Environment 1974; 57 and • the Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment 1986. 58

Let us consider the most significant features of some of these international arrangements. [1975] ATS No 48. For the text see (1972) 11 ILM 963.

47

[1975] ATS No 47. For the text see (1972) 11 ILM 1358.

48

[1976] ATS No 29. For the text see (1973) 12 ILM 1088.

49

[1991] ATS No 32. For the text see (1980) 19 ILM 15.

so

[1988] ATS No 26. For the text see (1987) 26 ILM 1529.

51

[1989] ATS No 18. For the text see (1987) 26 ILM 1550.

52

[1992] ATS No 7. For the text see (1989) 28 ILM 657.

53

[1993] ATS No 32. For the text see (1992) 31 ILM 818.

54

[1994] ATS No 2. For the text see (1992) 31 ILM 848.

55

[1990] ATS No 41.

56

[1990] ATS No 31. For the text see (1987) 26 ILM 38.

Declaration of the United Nations Conference on Environment and Development 1992. For the

57

[1981] ATS No 6.

text see (1992) 31 ILM 874.

58

[1988] ATS No

The principles contained in these declarations - if not as rules of law at least as statements of policy - set the scene for the formulation of negotiated arrangements on a multilateral basis for the protection of the environment and for the achievement of sustainable development.

45

International Conventions

46

• the obligation in Principle 26 to resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations.

70 (3.90]

I CH 3

22.

[3.1001

n

The International Framework of Environmental Law

PART I The Normative Context of Environmental Law

The Ramsar Convention on Wetlands The principal obligation imposed upon states by the Ramsar Convention on Wetlands of International Importance 1971 59 is contained in Art 4. It states:

[J.110)

Each contracting party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the list or not, and provide adequately for their wardening.

The convention provides for the creation of a "list of wetlands of international importance". 60 The inclusion of a wetland in the list is determined in accordance with the international significance of the wetland in terms of ecology, botany, zoology, lirnnology or hydrology. 61 There is an obligation to designate at least one wetland to be included in the list. 62 However, Art 4 applies whether the area is included in the list or not. There is, therefore, an overriding obligation to promote the conservation of wetlands and waterfowl by establishing nature reserves. However, the conservation of wetlands and waterfowl by the establishment of nature reserves on wetlands is effectively limited to the geographical area so described. This constitutes an example of in-situ conservation.

The Convention on Biological Diversity The conservation of biological diversity in general requires a more comprehensive and integrated response than the management of geographically identifiable areas such as nature reserves. It requires ex-situ conservation as well as in-situ conservation. The former is conservation outside a natural habitat and the latter inside a natural habitat. The United Nations Convention on Biological Diversity 1992 63 relies upon both methods of conservation. The creation of these two types of conservation is, of course, a reflection of the nature of biological diversity itself. It is a value whose substance is essentially dynamic, volatile and fluid. It cannot, in other words, be restrained geographically within identifiable boundaries. Indeed the complexity of the value is further demonstrated by its interpretation in the convention: [3.120)

The variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part. 64

There are three objectives prescribed by the convention. These are: • the conservation of biological diversity; • the sustainable use of its components; and • the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources. 65 While the expectation is, no doubt, that these objectives can be achieved consistently with each other, this may not necessarily be so in practice. Ensuring 59

(1975] ATS No 48. For the text see (1972) 11 ILM 963.

60

Ramsar Convention on Wetlands of International Importance 1971, Art 2(1).

61

Ramsar Convention on Wetlands of International Importance 1971, Art 2(2).

62

RamsarConvention on Wetlands of International Importance 1971, Art 2(4).

63

(1993] ATS No 32. For the text see (1992) 31 ILM 818.

64

United Nations Convention on Biological Diversity 1992, Art 2 "biological diversity".

65

United Nations Convention on Biological Diversity 1992, Art 1.

72 [J.110]

I CH J

the achievement of objectives moreover may well be beyond the capacities of any legal system. In any case, in the event of a dispute, settle~ent by _arbitration or ~y the International Court of Justice is no more than an option which a state, m its 66 discretion, may or may not accept. The detail of the convention is found in the large number of obligations placed upon states. Although the conservation of biological diversi_ty is_ one. of ~e objectives of the convention, there is no obligation to conserve b10logical diversity as such. Broadly, the obligations are about putting in place systems and procedures for the conservation of biologic~ di_ver~ity. Much ~~ left to the discretion of the states and in most cases the obligation is itself qualified by words such as "as far as possible and as appropriate". But one of the strengths of the convention is the areas to which it applies namely: • in the case of components of biological diversity, in areas within the limits of its national jurisdiction; and • in the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national 67 jurisdiction or beyond the limits of national jurisdiction. So the application of the convention is extensive and reflective of its subject matter. The obligations are less substantive and more strategic and procedural. In other words, they appear mostly as strategic rules rather than as regulatory rules.

The Convention on Climate Change The subject matter of the United Nations Framework Convention on Climate Change 1992 68 is even more extensive than that of the convention about biological diversity. It seeks to protect the climate system which is the atmosphere, the 69 hydrosphere, the biosphere and the geosphere and the interactions among them. The structure of the convention is threefold: an objective, five principles and a series of commitments. The ultimate objective is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that will prevent 70 dangerous anthropogenic interference with the climate system. The principles 72 71 include not only intergenerational equity and the precautionary principle but 73 also the specific needs in special circumstances of developing countries. This last principle is particularly important in relation to the distribution of commitments. All parties, both developing and developed countries, are subject to the commitments in para 1 of Art 4. These are essentially strategic and procedural. The obligations in para 2 of Art 4 are imposed only upon the developed countries specified in Annex 1 - including Australia. Each of these states is required to adopt national policies and take corresponding measures on the mitigation of

[J.130)

66

United Nations Convention on Biological Diversity 1992, Art 27(3).

67

United Nations Convention on Biological Diversity 1992, Art 4.

68

(1994] ATS No 2. For the text see (1992) 31 ILM 848.

69

United Nations Framework Convention on Climate Change 1992, Art 1(3).

70

United Nations Framework Convention on Climate Change 1992, Art 2.

71

United Nations Framework Convention on Climate Change 1992, Art 3(1).

72

United Nations Framework Convention on Climate Change 1992, Art 3(3).

73

United Nations Framework Convention on Climate Change 1992, Art 3(2).

[J.130] 73

PART I The Normative Context of Environm e ntal Law

climate change, by limiting its anthropogenic emissions of greenhouse gases and by protecting and enhancing its greenhouse gas sinks and reservoirs. 7 4 There is thus a clear duty to mitigate climate change. How this is done is to some extent a matter of discretion, but the mechanisms include restricting greenhouse gas emissions on the one hand and enhancing greenhouse gas sinks and reservoirs on the other hand. The particular emission levels and the means of achieving these levels are prescribed not by the convention but by the Kyoto Protocol. 75 It discloses a number of significant features. There is a general obligation to achieve quantified emission limitations and fulfil reduction commitments by the years 2008 to 2012. 76 This is based upon the level of emissions in 1990. The target for Australia is 108%: a 77 significant privilege. This means that Australia must limit its greenhouse gas emissions to 8% above its 1990 levels by the years 2008 to 2012. The overall expectation is that developed countries as a group will have actually reduced their emissions by an average reduction of about 5% during that same period. The Kyoto Protocol prescribes the greenhouse gas emissions limitations. It does not prescribe exactly how they are to be achieved. This is left to the discretion of states. Three ways are contemplated by the protocol: • a s~stem of joint implementation whereby two or more states acting together achieve reductions in their emissions so that the combined emissions of all of the states acting together constitute compliance with their commitments in total; 78 • the use of systems incorporating clean development mechanisms; and 79 • the introduction of a system of trading in emission reduction units. 80

The Apia Convention on Nature Conservation One of the earliest sets of regional arrangements is to be found in the Apia Convention on Conservation of Nature in the South Pacific 1976. 81 It provides for the careful planning and management of natural resources linked to the general purpose of conservation of nature. 82 However its particular focus safeguards representative samples of natural ecosystems and the heritage of wildlife and its 83 habitat. The means for doing this involve the management of endangered species in protected areas such as national parks and national reserves. There is no duty to create protected areas. However, security is provided for existing [J.140]

74

United Nations Framework Convention on Climate Change 1992, Art 4(2)(a).

75

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change. For the text see (1997) 37 ILM 22.

76

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change, Art 3( 1).

77

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change,

78

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change, Art 4.

The International Framework of Environmental Law

I CH J

protected areas. There can be no reductions in the size of these protecte~ areas nor can parts of the area be alienated except after the fullest examination of the circumstances. 84

The Noumea Convention on Natural Resources and Environment Protection The Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986 85 is much more extensive. The area protected by the convention incorporates the 200 nautical mile zones established in accordance with international law off the territories that are bounded by the Pacific Ocean. 86 This includes the 200 nautical mile zone established off the east coast of Australia. Paragraph 1 of Art 5 places an obligation upon parties to endeavour to take all appropriate measures to prevent, reduce and control pollution of the convention area from any source and to ensure the sound environmental management and development of its natural resources. The definition of pollution incorporates protection of the marine environment and for this purpose the marine environment includes estuaries. 87 The general obligation in Art 5 is extended by the more particular duties created by Arts 7, 9 and 13. Each of these prescribes a duty to take all appropriate measures to achieve a particular objective. It is cast in relatively peremptory terms. The outcome to be achieved under Art 7 is to prevent, reduce and control pollution caused by coastal disposal or by discharges emanating from rivers, estuaries, coastal establishments, outfall structures, or any other sources in their territory. Article 9 deals similarly with discharges into the atmosphere. The objective in Art 13 is to prevent, reduce and control environmental damage, in particular coastal erosion caused by coastal engineering, mining activities, sand removal, land reclamation and dredging. What is particularly important is the potential for control of land-based activities within the territory of the state in question. The convention, therefore, protects the marine environment of the South Pacific not only from environmentally harmful activities in the sea but also from activities within the territory of the state that cause environmental harm to the marine environment. [J.150]

The Law of the Sea Convention The United Nations Convention on the Law of the Sea 1982 88 adopts a similar approach. The international conventions setting out the law of the sea prior to the coming into force of the 1982 convention were not concerned with the quality of the environment. Instead, the 1982 convention contains a series of provisions dealing with the protection and preservation of the marine environment in general terms. Importantly, the source of pollution may be located within the territory of a

[J.160]

Annex B. 79

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change, Art 12.

Bo

Kyoto Protocol 1997 to the United Nations Framework Convention on Climate Change, Art 6.

81

[199o)ATSN041.

82 83

Apia Convention on Conservation of Nature in the South Pacific 1976, recita l 6. Apia Convention on Conservation of Nature in the South Pacific 1976, Arts 11( 1) and V( 1).

74 IJ.140]

84

Apia Convention on Conservation of Nature in the South Pacific 1976, Art 111( 1).

85

[1990] ATS No 31 . For the text see (1987) 20 ILM 38.

86

Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986, Art 2(a)(i).

87

Noumea Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986, Art 2(f).

88

[1994) ATS No 31. For the text see (1982) 26 ILM 1261. [J.160) 75

The International Framework of Environmental Law

PART I The Normative Context of Environmental Law

state. Article 192 creates an obligation to protect the marine environment. Article 193 acknowledges the right of states to exploit their natural resources in consequence of the doctrine of the permanent sovereignty of states over their natural resources. However, this right must be exercised in accordance with the duty to protect and preserve the marine environment. Paragraph 1 of Art 194 requires states to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source. The source of environmental harm may be located within the territory of the state. The rules of international law, both global and regional, are concerned to protect the marine environment as much from land-based sources as from sea-based sources.

THE INTERNATIONAL ENVIRONMENTAL LEGAL SYSTEM

Its scope and substance The ways in which international environmental law has developed since the 1970s are quite remarkable. The law is now concerned not only with the environment of particular sites and locations but also the global environment in its most extensive sense. This may be demonstrated by the way in which international law has responded to the discharge of environmentally damaging substances into a particular environmental medium. First there was liability for damage caused by emissions from one identifiable source: for example from a specific land-based industrial activity 89 or from a specific vessel from which oil or some other damaging substance escaped. 90 Next there were regional arrangements to confront transboundary air pollution. 91 Then came relatively specific obligations to reduce the use of ozone-depleting substances. 92 Finally there were general strategies to stabilise atmospheric greenhouse gas concentrations. 93 This involved the imposition of duties on particular states to achieve identified emission targets within particular periods. 94 Not only has the scope of international law widened. So has its substance. It is concerned not only with the discharge of oil from ships and the release of harmful substances from ships but also with the protection of the marine environment from any source of pollution. 95 There are rules about the conservation not only of wetlands, endangered species and the habitat of endangered species but also about biological diversity in general terms. 96 The focus of the law has moreover [J.170)

89

For example, the Trail Smelter Arbitration : see above [3.20].

90

For example, the conventions about vessel-sourced po llution of the seas: see above [3.40].

91

For example, the Geneva Convention on Long-Range Transboundary Air Pollution 1979. For the text see (1979) 18 ILM 1442. For example, the Vienna Convention for the Protection of the Ozone Layer 1985 [1988] ATS No 26; for the text see (1987) 26 ILM 1529: and the Montreal Protocol on Substances that Deplete the Ozone Layer 1987 [1989] ATS No 18; for the text see (1987) 261 ILM 1550. That is, the United Nations Framework Convention on Climate Change 1992 [1994] ATS No 2. For the text see (1992) 31 ILM 848. That is, the Kyoto Protocol 1997. For the text see (1997) 37 ILM 22. For example, the United Nations Convention on the Law of the Sea 1982 [1994] ATS No 31. For the text see (1982) 21 ILM 1261. See above [3.100)-(3.130].

92

93 94 95 96

76 [J.170]

I CH 3

expanded from pollution from specific sources, through pollution of the environment generally, to prevention of environmental harm and finally to sustainable development.

97

Its mechanisms It is of particular significance that the mechanisms by w_hich_ international Jaw seeks to bring about these results have become significantly more sophisticated. These include strategic rules, regulatory r~es, liability ~ules and, increasingly market rules. There is, for example, a growing recogruhon of the importance of civil liability: in other words the imposition of duties upon persons and institutions other than states together with remedies for breach ~f these duties. 98 The major thrust of international environmental law remains the imposition of obligations upon states. These have become mo~e sophisticat~d and their nature has changed quite dramatically. There are what might be descnbed as strategic obligations. These require states to perform functions asso~iated wi~ the gathering of information, 99 the making of plans, 1 00 the formulation of policies and the monitoring of activities. 101 Then there are regulatory and procedural requirements. States must take steps to notify, to inform, to approve, to control, to prevent or to enforce. One of the mechanisms for doing ~s is environmental impact assessment. 102 Perhaps even more importantly there 1s a gro~mg range of substantive obligations. Limits are placed upon the amount of certain substances that may be used in certain ways 103 or limits are placed upon the amount of 104 certain substances that may be discharged in certain contexts. The capacity to discharge within these limits enables trading in these emission reduction units. How many of these rules are enforced remains an unresolved issue.

[J.l80)

Its principles The principles underlying international environmental law and the functions they perform have been helpfully summarised in the list that appears as

[J.190)

97 98

99 100

101

See above [3-30 J-[3.60 ]. For example, the conventions about vessel-sourced pollution of the seas (see above [3.40 ]); the Paris Convention on Third Party Liability in the Field of Nuclear Energy 1960 (for the consolidated text see p W Birnie and A E Boyle, Basic Documents on International Law and the Environment (Oxford Un iversity Press, Oxford, 1995) pp 65-90 ); the Luga no Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993 (for the text see (1993) 32 ILM 1228). For example, Vienna Convention for the Protection of the Ozone Layer 1985 [ 1988] ATS No 26, Arts 2(2)(a), 31 4 and 5. For the text see (1987) 26 ILM 1529. For example, Paris Convention to Combat Desertification in Those Countries Experiencing Drought and/or Desertification, Particularly in Africa 1994, Arts 9 to 11. For the text see (1994) 33 ILM 1328. For example, Oslo Protocol on Further Reduction of Sulphur Emissions 1994, Art 6. For the text

102

see (1994) 33 ILM 1542. For examp le, United Nations Convention on Biological Diversity 1992 [1993] ATS No 32, Art 14• For the text see (1992) 31 ILM 818. More generally see the Espoo Convention on Environmental Impact Assessment in a Transboundary Context 1991 . For the text see (1991) 30 ILM 802.

103

For example, controls on ozone-depleting substances.

104

For example, controls on greenhouse gas emissions. [3.1901

n

The Internacional Framework of Environmental Law

PART I The Normative Context of Environmental Law

the Appendix to this chapter. It may be useful to highlight the most important. There is, for example, the principle of public participation in decision-making coupled with the requirement to provide information to enable public participation to be effective. 105 Then there is the polluter pays principle. The precautionary principle probably remains more a matter of process than of substance. The principle of intergenerational equity on the other hand is probably more a matter of substance than of process. Then there is sustainable development. Is it a principle or something more? In one sense sustainable development is the outcome or the objective of the totality of the system created by international environmental law. In this way it provides coherence and cohesion within a system that is otherwise fragmented. But sustainable development is often described as a principle and sometimes as a meaningless principle lacking substance. Even if it is a principle rather than a prescribed outcome, it has assumed a fundamental role not only in the international environmental legal system but in a growing number of national environmental legal systems. Its role in the Australian environmental legal system is examined in Chapter 7.

THE SIGNIFICANCE OF INTERNATIONAL ENVIRONMENTAL LAW FOR AUSTRALIA [3.200] Why is international environmental law so important for Australia?

Australia is a member of the international community. Australia must comply with the rules of international law and with any obligations imposed by international conventions to which it is a party. The impact of international law is important for any state but particularly important for a federation like Australia. While the rules of international environmental law are not part of Australian law, they perform a number of important functions within the Australian environmental legal system.

The relationships between international law and Australian law Non-compliance with international law [3.210] Let us consider first non-compliance. If Australia has failed to comply with

an obligation imposed upon it by international environmental law or with a general rule of international law, then it is a matter for other states in the international community to do something about it. For example, if Australia, either at federal or State level, has failed to enact legislation to protect the environment where there is a duty to do so under a convention or failed to protect an area which it is required to protect under a convention, any remedy is beyond the jurisdiction of an Australian court. Similarly, but from a different perspective, any legislation of an Australian legislature that is in conflict with international law or in breach of international law is not invalid for that reason. 106 And failure to 105

106

For example, the Aarhus Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters 1998. For the text see (1999) 38 ILM 517. Horta v Commonwealth (1994) 181 CLR 183.

78 [3.2001

I CH 3

conform with international law does not render any decision, activity or behaviour in Australia unlawful for that reason.

The influence of international law [3.220] This is not to suggest that international environmental law is irrelevant to

Australian environmental law. The rules of international law are an expression of the current values of the international community. For this reason these are values that should not, as a matter of general policy, be ignored by the Australian community. Governments in Australia are no doubt often influenced by international developments. Even more importantly, the common law and the development of the common law are the responsibility of the judicial system in Australia unless legislation has been enacted to abrogate or modify a rule of the common law. The courts in Australia are increasingly comfortable with developing the common law of Australia consistently with the principles and rules of international law. For example, it was commented by Brennan J in Mabo in support of the existence of common law native title in Australia: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. 107

If environmental rights are perceived to be human rights, this approach assumes even greater significance for environmental law in Australia.

Issues of interpretation [3.230] Then there are the rules about the interpretation of legal instruments. The

interpretation of a statute that is in conformity with international environmental law is preferred to an interpretation that is in conflict with international environmental law. 108 However, the provisions of the statute must be enforced and applied in their terms even if this is in conflict with international environmental law. Similarly, if a provision in the constitution is ambiguous, it 109 should be interpreted in conformity with the principles of international law. However, no rule of international law and no provision of a treaty or a convention can override the provisions of the constitution or an Act of a parliament. In any case, if a provision is ambiguous, the court favours the interpretation which 110 accords with Australia's obligations under international law.

107 108

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42. Po/ites v Commonwealth (1945) 70 CLR 60 at 68 and 69. See also Brown v Forestry Tasmania (No 4) (2006) 152 LGERA 146 at 191.

109

Newcrest v Commonwealth (1997) 147 ALR 42 at 147.

110

Chu Kheng Lim v Minister (1992) 176 CLR 1 at 38. IJ.2301 79

The International Framework of Environmental Law

PART I The Normative Context of Environmental Law

Incorporation of international law [3.240] The only way in which international environmental law becomes part of

Australian law is by the enactment of specific rules to achieve that effect. 111 The legislation either of the Commonwealth or of a State or Territory may simply enact legislation that gives effect to the provisions of the international convention without saying so directly or indirectly. On the other hand the legislation may make it clear, either expressly or by implication, that this is the intention. For example, the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) contains in the Schedules the text of all the relevant international legal instruments. Additionally s 8 provides that expressions used in Pt II of the Act and in the relevant annex to the convention have the same meaning as in the annex to the convention. In practice it would be difficult to interpret and apply the Act without giving effect to the interpretation of those expressions stated in the convention. Section 33(1)(c) further provides that the Governor-General may make regulations for and in relation to giving effect to the convention other than the provisions of the convention to which effect is given by a provision of the Act. It is demonstrably clear, therefore, that the Parliament of the Commonwealth intended to give effect to the relevant international legal instruments. 112

A procedural right to consistent decision-making [J.250) However the mere fact that the provisions of an international legal

instrument have not been incorporated within Australian law does not mean that they are of no relevance. In the case of Teoh the High Court of Australia in 1995 confirmed that "the provisions of an international treaty to which Australia is a party do not form a part of Australian law unless those provisions have been validly incorporated into our municipal law by statute". 113 The court in this case was concerned not with a statute but with a decision made by a minister pursuant to a statute. While the circumstances of the case did not relate to matters concerning the environment, the principle established by the High Court is relevant for environmental law. In this case the Commonwealth had ratified the relevant convention but had not enacted legislation incorporating it into Australian law. The principle formulated by the High Court was this: Ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent 111

112 113

Minister v Teoh (1995) 183 CLR Multicultural Affairs: Ex parte Lam

273 at 287. See also Re Minister for Immigration and (2003) 214 CLR 1and Country Energy v Williams (2005) 141

LGERA426. The States have enacted similar legislation in relation to areas within their jurisdiction: eg the Marine Pollution Act 1987 (NSW) interpreted in Morrison v Peacock (2002) 210 CLR 274; [2002] HCA 44. Minister v Teoh (1995) 183 CLR 273 at 287.

80 [3.240]

I CH 3

statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the convention and treat the best interests of the child as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should_ personally entertain the expectation; it is enough that the expectation 1s reasonable m the sense 114 that there are adequate materials to support it. This doctrine created a procedural right that the decision-maker would inform the person affected by the decision that it proposed to act inconsisten~ly with the convention. This would give to the person affected an opporturuty to make representations about that. A1 ·stralia has ratified a large number of international environmental conventions and it would be optimistic to claim that all of the provisions of these conventions have been incorporated into Australian law. There is on the face of it considerable scope for the doctrine enunciated in Teoh to apply in the context of environmental law.

International law and the external affairs power [J.260) If

Australia has undertaken obligations under an international environmental convention and if the provisions of the convention are not part of Australian law until incorporated in it by legislation, then it is almost axiomatic to conclude that the Parliament of the Commonwealth has the power to enact legislation to give effect to these obligations. This is particularly so if - as is the case - it is the Commonwealth alone that has responsibility for international affairs. However the matter is governed by the provisions of the Commonwealth Constitution. The power of the Parliament of the Commonwealth to make laws with respect to external affairs under s Sl(xxix) has been the subject of considerable judicial analysis. There is probably little doubt that it falls within the external affairs power for the Parliament of the Commonwealth to pass laws that implement obligations imposed upon Australia by an international treaty or convention. There was some doubt whether the matter, in addition, had to be one of 115 international concern. The High Court in the Tasmanian Dam case decided that there was no need for the matter to be of international concern. The legislation whose validity was questioned in that case was the World Heritage Properties Conservation Act 1983 (Cth) which purported to give effect to obligations in the

Paris Convention for the Protection of the World Cultural and Natural Heritage 1972.

116

There were two questions. Did the convention impose upon Australia an obligation specific enough to be enforced? If so, were the provisions of the Act "appropriate and adapted" to implement these obligations? A mere glance at the Environment Protection and Biodiversity Conservation Act 1999 (Cth) reveals the significance of Australia's international obligations in underpinning the capacity of the Parliament of the Commonwealth to enact environmental legislation. One of its objects is to provide for the protection of the environment, especially those aspects of the environment that are of "national

114 115 116

(1995) 183 CLR 273 at 291. (1983) 158 CLR 1. [1975] ATS No 47. For the text see (1972) 11 ILM 1358.

Minister v Teoh

Commonwealth v Tasmania

[J.260] 81

PART I The Normative Context of Environmental Law

environmental significance". 117 Division 1 of Pt 3 of Ch 2 sets out the requirements that determine whether a matter is one of national environmental significance. A matter is one of national environmental significant if - among others - it has an international perspective. Some are demonstrably connected with Australia's international obligations. For example, there are these three: • world heritage properties; 118 • Ramsar wetlands; 119 and • the marine environment. 120 Then there are listed threatened species and communities and listed migratory species. Listed migratory species must include species included in lists compiled under three international agreements. 121 A matter becomes a matter of national environmental significance if it is so prescribed by regulation. One such category includes actions subject to Australia's international obligations. 122 Whether or not the Act gives effect to all or any of Australia's international obligations, the intention of the Parliament is clear enough. Power is given to the Governor-General to make regulations whose purpose is to give effect to relevant international agreements. Section 528, the definition section, specifically identifies eight international agreements to which Australia is a party. Most of these - like the Apia, Noumea and Ramsar conventions - deal with aspects of biological diversity and natural resources conservation. Two agreements, however, deserve special mention because of their global dimensions: the United Nations Convention on Biological Diversity 1992 123 and the United Nations Framework Convention on 124 Climate Change 1992. The Commonwealth could accordingly include climate change as a matter of national environmental significance by regulation. To give effect to either of these conventions would require the introduction of a wide range of regulatory rules whose impact would be intrusive. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) is much more intrusive than earlier Commonwealth legislation. The effect of any regulations designed to implement Australia's international obligations could be even more dramatic. Section 9(1) of the Water Act 2007 (Cth) states the legislative powers relied upon by the Commonwealth for this enactment. These include the external affairs power. The Act makes provision for the management of the water resources of the Murray-Darling Basin and one of the mechanisms for doing so is the MurrayDarling Basin plan in conjunction with water resource plans for particular areas within the Murray-Darling Basin. These plans provide - as one would expect - for the comprehensive management of the water resources of the Murray-Darling Basin and this includes limits on the amount of water that may lawfully be 117

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 3(1)(a).

118

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 14.

119

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 17.

120

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 24.

121

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 209(3).

122

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 25(5)(e).

123

(1993] ATS No 32. For the text see (1992) 31 ILM 818.

124

(1994] ATS No 2. For the text see (1992) 31 ILM 848.

82 13.260]

The International Framework of Environmental Law

I CH 3

extracted from the various sources. Hitherto this has been a matter for the States and the Territories. Decisions must not be made and operations must not be undertaken unless they are consistent with the plans. Sections 36(1) and 60(1) state that the Murray-Darling Basin Plan and a water resource plan impose obligations to the extent to which imposing the obligation gives effect to a relevant international agreement. A relevant international agreement is one of the eight international agreements to which Australia is a party and which is noted ins 4. These include the Ramsar Convention, the Biodiversity Convention, the Desertification Convention and the Climate Change Convention. Accordingly the regulatory rules in the Murray-Darling Basin Plan and in water resource plans are valid and are enforceable to the extent that they give effect to Australia's international obligations in these conventions and are "appropriate and adapted" to implement these obligations. If the regulatory rules in the plans satisfy these tests, then it is likely - just as in the case of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - that these regulatory rules will be intrusive.

SUMMARY [J.270] International environmental law is important for its own sake. It is an

emerging branch of international law which, because of its subject matter, is being forced to reconsider not only the values that it espouses but also the ways in which these values are protected through the international legal system. One of the important features of the emerging system is that there are rules of international environmental law that exist independently of conventions or treaties. Moreover, international practice as evidenced by these conventions and treaties is moving consistently in the same direction as the principles of international environmental law: namely environmental protection, nature conservation and sustainable development. Most would argue that it is now difficult to deny that sustainable development is a principle of international law. Apart from that, international environmental law is important for Australia for a number of reasons. These are: • it influences the values of the Australian legal system particularly but not only in relation to human rights; • this will become increasingly important for environmental law to the extent that there is international recognition of an environmental right; • international environmental law is a source of inspiration for the courts in developing the common law of Australia and in interpreting Australian legislation; • the interpretation of a national legal instrument that is in conformity with international environmental law is to be preferred; • if a provision in a national legal instrument is ambiguous, then international environmental law is relevant in assisting the interpretation of that provision; • where Australia has ratified but not incorporated an international convention within Australian law, then this raises a legitimate expectation that it will be taken into account in any relevant decision-making process; and 13.270] 83

PART I The Normative Context of Env iro nmental Law

The International Framework of Environmental Law

• the Parliament of the_Commonwealth in exercise of the external affairs power ma! ~ake laws to give effe~t to_Australia's international environmental legal obligations where the legislation 1s appropriate and adapted to implement these obligations.

I CH J

APPENDIX J.1 FUNCTIONS OF INTERNATIONAL ENVIRONMENTAL LAW PRINCIPLES AND CONCEPTS [J.JOO]

1. Principles Shaping Global Environmental and Sustainable Development Instruments 125 1)

Right to Life and a Healthy Environment

2)

State Sovereignty

3) 4) 5)

Right to Development Sustainable Development Common Heritage Of Humankind

6)

Common Concern

7) 8)

The Obligation Not to Cause Environmental Harm Intergenerational and Intragenerational Equity

9) 10) 11)

Common but Differentiated Responsibilities Precautionary Principle Duty to Assess Environmental Impacts

12)

Principle of Subsidiarity

13)

Right of Public Participation Prior Informed Consent

14)

II. Principles Relating to Transboundary Environmental Disputes Peaceful Resolution of Disputes

1)

2) 3)

Good Neighbourliness and Duty to Cooperate The Duty Not to Cause Environmental Harm

4) 5)

State Responsibility Duty to Notify and Consult

6) 7)

Duty to Assess Environmental Impacts Equitable Utilisation of Shared Resources

8)

Non-Discrimination of Environmental Harms

9) 10)

Equal Right of Access to Justice Prior Informed Consent

11)

Duty to Implement Effective Environmental Laws

Ill. Principles for Developing National Environmental Laws Duty to Effective (sic) Environmental Laws

1) 3)

2)

Polluter and User Pays Principle Pollution Prevention

4)

Precautionary Principle

125

See David Hunter, James Salzman and Durwood Zaelke, International Environmental Law and Po/icy (3rd ed, Foundation Press, New York, 2007) p 471 .

84 [J.270] [J.JOO] 85

PART I The Normative Context of Environmental Law

5)

6) 7) 8)

9)

10)

Duty to Assess Environmental Impacts Principle of Subsidiarity Public Participation Access to Information

CHAPTER 4 The Constitutional Foundations of Environmental Law

Access to Justice Free, Prior Informed Consent

IV. Principles Governing International Institutions 1) Duty to Assess Environmental Impacts 2) Public Participation 3)

4)

Access to Information Sustainable Development

5)

Free, Prior Informed Consent

NATURE OF CONSTITUTIONAL ARRANGEMENTS [4.10] It is one thing to postulate the ethical foundations of nature conservation

and environmental protection. It is quite another to translate these ideologies into a form and a substance that are both meaningful and enforceable within a legal system. This was a point of significance for Mark Sagoff, it will be recalled, 1 who argued that the safeguards appropriate to environmental policy had to be as strong as those which protect our most fundamental rights. Ultimately, it was suggested, they must be found in a constitution. International law exhibits many of the characteristics of a constitution. It provides a system of governance of particular matters, for example, and it declares a set of fundamental rights on a range of topics. It has a very important part to play in securing the conservation of nature and the protection of the environment. The scope, procedures and effects of international law are becoming more extensive and comprehensive. Moreover it tends to fit the paradigm of shared responsibilities described by Robert Goodin. 2 While rights and duties in relation to the environment are clearly part of international environmental law, many of its rules relate to issues of structure, jurisdiction, procedure, and implementation. International environmental law may prescribe an outcome whose achievement is the responsibility of a state. But the detailed manner in which the outcome is achieved is left very much to the discretion of the state. Much of this applies also to a constitution. It is probably no accident that similar interpretive principles apply to constitutional and international instruments. This is changing in that international environmental law is beginning to prescribe standards of environmental quality. This however is only in its infancy. Many constitutions now deal with the quality of the environment. And so the structure, form and language of international environmental law presents an important model for the formulation of rules for the conservation of nature and the protection of the environment in national legal systems - including constitutional arrangements. One of the ways in which this is manifested is the inclusion of fundamental values in instruments that have the status and, in some cases, the effect of constitutions. It is the provisions of the instrument that are important. It does not matter what it is called. It may be a constitution, a basic law, a fundamental law, a bill of rights, or, in more modem terminology, a charter. Nor does it have to be entrenched in the sense that it cannot be varied or altered except in accordance with a specially prescribed procedure. It may be an enactment, like any other See above [2.250]. 2

86 13.300]

See above [1.90). [4.10] 87

The Constitutional Foundations of Environmental Law

PART I The Normative Context of Environmental Law

enactment, while its significance lies in its subject matter. It may even be a principle of a common law system so deeply embedded within it that it assumes fundamental significance. A constitution, then, carries with it great weight and influence simply because of its status. In this sense it represents a set of principles and even ideologies, whether stated directly or implied, that are seen to sustain and permeate the rest of the legal system to the extent that they are relevant to the issue under consideration. It represents, in other words, a number of the fundamental values of a legal system. A constitution can perform a number of functions. It may prescribe, first of all, a system of governance for the state in question. Jurisdictions whose arrangements grew out of the Westminster model tended - but only until recently for some - to go no further and they relied upon the principles and procedures of the common law system for their fundamental values linked to human rights. There is now, of course, a propensity for fundamental values to be included in a constitutional instrument often in the form of a bill of rights. Again the use of this terminology can be as misleading as is the use of the word constitution itself. These fundamental values do not necessarily assume the form of rights. These values may find expression as statements of policy or statements of principle or statements of obligation or duty. The formal way in which the value is expressed is, of course, of critical importance. Is it, for example, a mere statement of a value? Does it carry with it a duty? What is its status within the system? Does its subject matter sustain a capacity to be enforced? Is there access to the judicial system for the purpose of ensuring compliance? Fundamental rights that are unenforceable, many would argue, are worthless. And fundamental rights of a public nature may, for that reason, be unenforceable by individual members of a community. If there are environmental rights, whatever their nature, they are likely to be of little consequence unless they fit comfortably within some sort of constitutional framework. A comparative analysis of a number of examples from a range of jurisdictions demonstrates the point.

CONSTITUTIONAL RIGHTS AND DUTIES A right of nature - Ecuador [4.20)

Atticle 71 of the Constitution of Ecuador states in its first paragraph:

Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.

This is a right conferred upon nature. The substance of the right is respect: first, respect for nature's existence and second, respect for the maintenance and regenerations of its functions and values. It is not a right for nature to exist and to be maintained and regenerated. It is respect for these values. It is nevertheless a rather unique example of a right in respect of nature. It is supported by the obligation imposed on the state by Att 406. The obligation is to "regulate the conservation, management and sustainable use, recovery and boundaries for the domain of fragile and threatened ecosystems, including among others high 88 [4.20]

I CH 4

Andean moorlands, wetlands, cloud forests, dry and wet tropical forests and mangroves, marine ecosystems and seashore ecosystems". The obligation imposed on the state is complemented by the obligation imposed upon the citizens. This is to "respect the rights of nature, preserve a healthy environment, and use natural resources rationally, sustainably and durably". In this way, the right of nature to be respected is supported by the obligation placed upon humans to respect the rights of nature. The obligation imposed upon humans goes further and relates to the preservation of a healthy environment and the rational, sustainable and durable use of natural resources.

An environmental right - South Africa Section 7 of the Constitution of the Republic of South Africa 1996 provides that the Bill of Rights - part of the Constitution - is a cornerstone of democracy in South Africa and that it enshrines the rights of all people and affirms the democratic values of human dignity, equality and freedom. A reflection no doubt of Kantian deontology. Consistently with this statements 24 creates a human right to an environment of a particular quality. Thus everyone has the right:

[4.30)

• to an environment that is not harmful to their health or well-being, and • to have the environment protected for the benefit of present and future generations. This right is fundamental; human; and anthropocentric. And a reflection of utilitarianism. Its significance as a fundamental right derives from four other factors: • it may be limited only in accordance with the criteria set out in s 36; • a competent court may provide a remedy for the infringement or threatened infringement of the right on the application under s 38 of one of a number of persons including anyone acting in the public interest; • an interpretation of the Bill of Rights under s 39(1) must promote the values underlying the Constitution and must consider international law; and • an interpretation of any legislation must under s 39(2) promote the spirit, purport and objects of the Bill of Rights. This environmental right - as a fundamental human right - is of critical importance because of its capacity to be directly enforced. Section 24 goes further. Although it does not create a duty to enact legislation, the second element implies that the legislatures in South Africa will enact legislation and take other measures for three purposes: • to prevent pollution and ecological degradation; • to promote conservation; and • to secure ecologically sustainable development and the use of natural resources while promoting justifiable economic and social development. It is the existence of this fundamental right, its capacity for enforcement and the implied obligation upon legislatures that have invoked this early comment: The environmental right requires the government to take legislative steps to protect the environment and justify such steps if they clash with other rights (such as, for example, the right to property). The significant implication of the environmental right is the result of the fact that it not only binds the state in its relations with individuals, [4.30] 89

PART I The Normative Context of Environmental Law

but that individuals may assert their rights against the state and against other individuals. This means that where a person's right to a healthy environment is violated by the actions of a private individual or company, that person may invoke the right and seek the relief provided for in the Bill of Rights. 3

The Constitutional Foundations of Environmental Law

exist from the inception of human kind". 8 The decision of the court received further support from s 16 of Art II of the Constitution of the Philippines 1987. It provides: The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

This early prediction has subsequently received judicial support in this way: By elevating the environment to a fundamental justiciable human right, South Africa has irreversibly embarked on a road, which will lead to the goal of attaining a protected environment, by an integrated approach, which takes into consideration, inter alia, socio-economic concerns and principles. 4

There are three points to note: • judicial protection of the right; • the right is linked to the protection of the environment; • socio-economic concerns are relevant in protecting the environment. To some extent this points in the direction of ecologically sustainable development. Indeed s 24 expects the enactment of legislation to secure ecologically sustainable development. What is the relationship between the several elements of ecologically sustainable development? This is a judicial response: Economic and social development is essential to the well-being of human beings. This court has recognised that socio-economic rights that are set out in the Constitution are indeed vital to the enjoyment of other human rights guaranteed in the Constitution. But development cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development. Promotion of development requires the protection of the environment. Yet the environment cannot be protected if development does not pay attention to the costs of environmental destruction. The environment and development are thus inexorably linked. 5

Clearly the constitutional right in South Africa to an environment that is not harmful to health or well-being does not stand alone and is related to - among others - ecologically sustainable development, the use of natural resources and the promotion of justifiable economic and social development.

There was further support from s 15 of the same article: The state shall protect and promote the right to health of the people and instil health consciousness among them.

There can be no doubt that this is a human right. It is first of all a right to a balanced and healthful ecology and then a right to health. The right to a balanced and healthful ecology is a very positive statement. It is comprehensive in nature. Although it is a human right, the manner in which it is expressed carries with it - certainly by implication - that non-human interests are relevant. There is first the reference to a healthful ecology and secondly the reference to the rhythm and harmony of nature. Section 16 of Art II comes close to a recognition of the importance of nature and the environment for their own sakes. It is not only the existence of this constitutional right that is important. The right is also cast as the predicate of the duty placed upon the state to protect and advance it. The creation of this duty - important in itself - enabled the Supreme Court of the Philippines to provide a remedy for a breach of the duty and through that a remedy for an infringement of the right. The form of this constitutional right thus led to two further conclusions. First, it carries with it "the correlative duty to refrain from impairing the environment". 9 And so protection - the constitutional duty- implies prevention. This duty rests upon everyone as well as upon the state. Secondly, "a denial or a violation of that right by the other who has the correlative duty or obligation to respect or protect the same gives rise to a cause of action". 10 This, of course, is what happened in this case. The line of argument is impressive: a constitutional or fundamental right to a healthful ecology; a correlative duty not to damage the environment; a cause of action available to anyone who seeks to protect that right.

An environmental right and duty - the Philippines

An unenforceable environmental right - the State of Bavaria

[4.40] It has already been noted 6 that the decision of the Supreme Court of the

Philippines in the Minors Oposa case 7 was based partly upon the existence of a human right to "self-preservation and self-perpetuation" that was assumed "to 3

Peter Lazarus, lain Currie and Rob Short, "The legislative framework: environmental law, investment and industrial practice" in Lael Bethlehem and Michael Goldblatt (eds), The Bottom Line: Industry and the Environment in South Africa (University of Cape Town Press, Cape Town, 1997) p 14.

4

BP SA Pty Ltd v Minister (2004) 2004 (5) South Africa 124 at 144.

5

6

Fuel Retailers Association of Southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Management (2007) 10 Butterworths Constitutional Law Reports 1059 at [44]. See above [2.170]-[2.190).

7

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33

ILM 173. 90 [4.40]

I CH 4

[4.50] One of the earliest examples of a constitutional right related to the

environment is Art 141(3) of the Constitution of Bavaria 1946 amended in 1984 to include this provision: Everyone is permitted to enjoy the wilderness and to seek recreation in open country, particularly to enter forest and alpine pasture, to travel over the waters and to appropriate wild growing fruits of the forest to the extent which is customary. In doing this, everyone is obliged to take good care of nature and countryside. The state 8

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33

9

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33

10

Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 33

ILM 173 at 187. ILM 173 at 188. ILM 173 at 191. [4.50] 91

PART I The Normative Context of Environmental Law

and th~ municipalities are entitled and obliged to keep open the access to mountains, lakes, nvers and other resources of the countryside for the general public and if need be, to clear them by means of restrictions on private property, or by laym· g out footpaths m recreation areas.

Th~ h~an dimensions of this quite specific right are clear. It is supported by an o~ligation of care in relation to nature. Clearly there is a right of access to wilderness areas and to the countryside. However, ~e duty has been construed in a very narrow way. There is, for examp_le, no nght for the environment to be protected. As Ernst Brandl and Hartwm Bungert have indicated: Schol~rs have ~ttempted_ to construe art 141(3), cl 1 of the Bavarian Constitution as granting_ md.iv1duals a nght of protection against infringements on nature and the coun~s1de. _However, these attempts were frustrated by the Bavarian Constitutional Courts holding that the provision does not imply a subjective fundamental right to the protection of nature, but is only a statement of public policy of obi·ective character. 11

So, what might at first be taken to be an environmental right turns out to be on! a matter of public policy. y

Environmental policy statements - the People's Republic of China [4.60). Statements of public policy - even where they are included .

·thin WI constituti?ns_ or legislation - often have little or no legal consequence. Article 26 of the Constitutzon of the People's Republic of China 1982 states: The st_ate protects and improves the environment in which people live and the ecological envrr?nment. It prevents and controls pollution and other public hazards. The state orgaruses and encourages afforestation and the protection of forests.

While this is a statement of function, there is an element of implied al Th di tin ti b v ue. e . s c .on etween the human environment and the ecological environment is mteresting. No doubt ecological values are worth protecting. But the wider context of Art 26 suggests that the protection of ecological values is ultimately the responsi~ility of the state and of the state alone. Article 9, for example, gives the ownership of all natural resources in effect to the state. It goes on to provide: The state ensures ~e rational use of natural resources and protects rare animals and plants. Appropnation or damaging of natural resources by any organization or md1v1dual by whatever means is prohibited.

The structure of the Constitution effectively ensures that it is the state _ acting through a range of formal and no doubt informal agencies _ that effectively manages the natural resour~es and the environment of China. The courts may be seen to be one of the agencies of the state for this purpose. Decisions of the state for example are generally not subject to review by the courts. 12 Articles 9 and 26 of the Constitution are, therefore, statements of public policy and no more. 11

12

Ernst Brandl and Hartwin Bungert, "Constitutional entrenchment of environmental protection: a comparative analysis of experiences abroad" (1992) 16 Harvard Environmental Law Review 1 at 39. Wang Xi and R E Blomquist, "The developing environmental law and policy of the People's Republic of China: a~ introduction and appraisal" (1992) 5 Georgetown International Environmental Law Review 25 at 74.

The Constitutional Foundations of Environmental Law

I CH 4

Environmental policy statements - the European Union [4.701 The constitutional structure of the European Union approaches the

protection of the environment quite differently. The European Community has always taken an interest in environmental matters, notwithstanding the absence of any reference to environment in the original constitutional structures of the community. The environment is now a matter of formal concern following upon the changes first introduced in 1992. According to Art 2 of the Treaty Establishing the European Community one of the tasks is "to promote throughout the community a harmonious, balanced and sustainable development of economic activities" and another is to promote "a high level of protection and improvement of the quality of the environment". This is cast as a function linked to an objective or outcome not a duty. Article 3(e) contemplates that the activities of the community shall include a policy in the sphere of the environment. According to Art 6 environmental protection requirements must be integrated into the implementation of such a policy with a view to promoting sustainable development. Atticles 174 to 176 seek to do so. Atticle 174 contains three elements: a statement of four objectives; five principles related to "a high level of protection"; and four factors that have to be taken into account in the preparation of the policy. One of the four objectives is the preservation, protection and improvement of the quality of the environment. A second is the prudent and rational utilisation of natural resources. A large number of Directives of the community purport to achieve this objective. It is however the terms of the Directives that are important. 13 The proposed Treaty for Establishing a Constitution for Europe will build upon the arrangements described in the last paragraph. While the state of the environment is not included as one of the values of the European Union included in Art 1-2, the concept of sustainable development occupies a prominent place in Att I-3. It is accordingly one of the Union's objectives to work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. Significantly the three perspectives of sustainable development are included: namely, the economic, the social and the environmental or ecological perspectives. The proposed Constitution includes within it a charter of fundamental rights of the Union. The charter includes in Art II-97 what might thus be described as a fundamental right in relation to environmental protection. The Article provides: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

The first half of the sentence reflects the existing approach. However, the Article goes on to require that a high level of environmental protection and improvement of the quality of the environment are "ensured" in accordance with the principle of sustainable development. How this is to be ensured is not stated. The implication is that it is the responsibility of everyone - institutional and personal to bring this about. Its appearance in a charter of fundamental rights adds a 13

See below (5.80].

92 14.60)

14.70) 93

PART I The Normative Context of Environmental Law further dimension. Although it is formulated as what we have described as a passive obligation - not imposed upon anyone in particular - it contains within it the existence of a right to a high level of environmental protection and to the improvement of the quality of the environment in accordance with this obligation. The reference to the principle of sustainable development no doubt carries with it the principles of sustainable development that are now increasingly recognised. Indeed this is stated more specifically in Art ill-233. Paragraph 2 refers again to the objective of a high level of protection. It goes on to state:

The Constitutional Foundations of Environmental Law

An environmental right and policy statement - the State of Illinois [4.90) Sometimes an environmental right, an environmental duty and a statement

of environmental policy are interlinked in the same constitutional instrument. The

Constitution of the State of Illinois in the United States of America contains an environmental right and a statement of environmental policy. 17 Section 2 of Art 11 creates the environmental right:

It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.

Accordingly, although the environment is not one of the values of the European Union, it plays a very significant part as:

This is a human right of a fundamental nature and it is directly enforceable as such. While the power to enforce this right may be regulated by legislation, it would seem to be contrary to this provision in the Constitution for legislation to abrogate this right. Section 1 of the same Article states:

• one of the Union's objectives; • one of the Union's fundamental rights; and • one of the Union's fundamental policies.

The public policy of the state and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy.

The policy of the Union itself incorporates more specific objectives in addition to some of the principles of sustainable development as well as sustainable development itself.

An environmental duty - Greece (4.80) There are examples of an environmental duty created directly by the

constitution. Prima facie a duty is enforceable - unlike rights or objectives unless these rights or objectives are expressed in terms that indirectly or perhaps even directly create a duty. Paragraph 1 of Art 24 of the Constitution of Greece 1986 states that protection of the natural and cultural environment constitutes a duty of the state and a right of every person. The State is bound to adopt special preventive or repressive measures for the preservation of the environment in the context of the principle of sustainability. The Council of State has taken the view that the state has a duty to take the necessary "repressive or preventive measures" to protect the natural environment. This duty "stems directly from the Constitution, that is even if there is no specific provision made by some other law". 14 In one decision by the Council of State the view was expressed that mountains are not only aesthetic resources but also sensitive ecosystems. 15 These values were protected by Art 24 of the Constitution. In this case the proposed construction of a ring road on the mountain of Ymittos near Athens was unconstitutional partly because its construction would cause serious adverse effects on the ecosystem of the mountain. 16

14

15 16

I CH 4

loannis Karakostas and loannis Vassilopoulos, "Hellas" in Kurt Deketelaere (ed), International Encyclopaedia of Laws: Environmental Law (Kluwer Law International, The Hague, 1999) p 95. loannis Karakostas and loannis Vassilopoulos (1999) p 102. loannis Karakostas and loannis Vassilopoulos (1999) p 102.

94 14.80]

The beneficiaries of this provision - just as the beneficiaries of the environmental right - are human beings. In this case future generations are specifically identified as well as current generations. A healthful environment is the outcome of each of these provisions. This clearly includes an environment that is healthy from the perspective of humans but by implication it may also comprise an environment that is intrinsically healthy. Section 1 of Art 11 is important in a number of respects: • it is a statement of public policy; • there is a consequential and positive duty placed upon each person in relation to a healthful environment; • there is an obligation on the legislature to provide for the implementation of this public policy; and • there is an obligation on the legislature to provide for the enforcement of this public policy. And how is the duty imposed upon individuals enforced? Although s 1 provides no remedy for a breach of this duty to provide a healthful environment, there may be a remedy arising out of the power to enforce the infringement of the right to a healthful environment in s 2. The use of the same words - healthful environment - in each paragraph is significant. On the one hand, the right to a healthful environment is closely linked to the duty to provide a healthful environment. On the other hand, there is nothing to suggest that the duty placed upon the legislature to provide by law for the implementation and enforcement of the public policy is enforceable. Not only that - it would seem unusual as a matter of principle for a positive duty prescribed by a constitutional instrument and imposed upon a legislature to be 17

See generally Ernst Brandl and Hartwin Bungert (1992) at 14-21. 14.90] 95

PART I The Normative Context of Environmental Law

The Constitutional Foundations of Environmental Law

I CH 4

directly enforceable through the judicial process. While a provision such as this places a limitation upon the sovereign right of the legislature to enact legislation, the way in which the legislature discharges this obligation lies very much within their discretion. Perhaps the only complaint that could reasonably be made against the legislature is a failure to do anything by way of a response to this direction.

There have been a number of petitions to the Supreme Court of India under Art 32 of the Constitution. The case brought by the Indian Council for Enviro-Legal Action involved the release of highly toxic sludge from a chemical factory. 20 It was alleged among a range of arguments that the fundamental right to life had been infringed. The response of the Supreme Court was both philosophical in nature and strictly legal in approach. The values underlying the approach of the court were clear:

A procedural right leading to an environmental right India

1his writ petition filed by an environmentalist organization brings to light the woes of people living in the vicinity of chemical industrial plants in India. It highlights the disregard, nay, contempt for Jaw and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, as they do, of the country's need for industrialisation and export earnings. Pursuit of profit has absolutely drained them of any feeling for fellow human beings - for that matter, for anything else. And the law seems to have been helpless. Systemic defects? It is such instances which have Jed many people in this country to believe that disregard of Jaw pays and that the consequences of such disregard will never be visited upon them particularly, if they are men with means. Strong words indeed - but nothing Jess would reflect the deep sense of hurt, the hearing of this case has instilled in us. 21

The Constitution of India contains a number of provisions that have been very influential in the development of environmental law in India. There are four relevant provisions in the Constitution:

[4.100)

• Art 21 confers on every person the fundamental right to life and personal liberty; • Art 32 confers on every person the fundamental right to move the Supreme Court of India for the enforcement of the other fundamental rights created by the Constitution; • it is one of the directive principles of state policy declared by Art 48-A that the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country; and

The petition was an invitation to the Supreme Court to provide a remedy under Art 32 of the Constitution. The Supreme Court stated with equal force the legal position: If the Supreme Court finds that the Government/authorities concerned have not taken the action required of them by Jaw and that their inaction is jeopardising the right to life of the citizens of this country or of any section thereof, it is the duty of the Supreme Court to intervene. If it is found that the respondents are flouting the provisions of law and the directions and orders issued by the lawful authorities, the Court can certainly make appropriate direction to ensure compliance with law and lawful directions made thereunder. 1his is a social action litigation on behalf of the villagers whose right to life is invaded and seriously infringed by the respondents as is established by the various reports of the experts called for, and filed before, the court. If an industry is established without obtaining the requisite permission and clearances and if the industry is continued to be run in blatant disregard of Jaw to the detriment of life and liberty of the citizens living in the vicinity, the Supreme Court has power to intervene and protect the fundamental right to life and liberty of the citizens of this country. 22

• it is one of the fundamental duties created by Art 51-A that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Articles 48-A and 51-A are not directly enforceable in any judicial proceedings. Legislation would be required to bring that about. Nevertheless, according to Art 37, the directive principles of state policy are fundamental in the governance of India and it is the duty of the state to apply these principles in making laws. Similarly, legislation is necessary for the implementation of the fundamental duties in Art 51-A to ensure that these duties are enforc eable against every citizen. Although these provisions are not in themselves enforceable, they have exerted a very strong influence upon the principles of environmental law in India. For example, the Supreme Court of India has determined that the precautionary principle and the polluter pays principle - part of sustainable development - have become part of the law of India partly because of the "constitutional mandate to protect and improve the environment". 18 Articles 21 and 32 together have provided the Supreme Court with the opportunity to protect the environment in a very positive and direct manner. Yet neither provision says anything about environment. Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. Despite its negative form, it creates a fundamental right to life. 19 18 19

Ve/lore Citizens' Welfare Forum v Union of India (1996) 5 Supreme Court Cases 647 at 658. For example, Kehar Singh v Union of India (1989) 1 Supreme Court Cases 204.

96 14.100]

As the court itself said - strong words indeed. It is the Constitution which gives the jurisdiction to the Supreme Court to ensure compliance with the law and it is the Constitution which sets the fundamental values which the court was determined to protect. Some 10 years later the Supreme Court of India relied not only upon these provisions of the Constitution of India but also upon a number of principles that had been developing over several years. The Tirupathi case was about two water tanks that had been used for many years by the local villagers as a source of water for irrigation but also as lakes to further the percolation of water underground. The land where the tanks were located had been alienated to enable residential development to take place. Although it was rather late to stop the development, 20 21

Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212.

22

Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212 at 238 and 239.

Indian Council for Enviro-Legal Action v Union of India (1996) 3 Supreme Court Cases 212 at 217.

14.100] 97

PART I The Normative Context of Environmental Law

The Constitutional Foundations of Environmental Law

conditions were attached that were hoped to go some way to conserving the tanks. What is significant, however, is that the Supreme Court of India relied not only on upon Arts 48-A and 51-A of the Constitution but a number of other sources of inspiration. 23 These included: • the responsibility of a state in accordance with international law to protect the environment; • the public trust doctrine according to which the state is the trustee of all natural resources which are by nature meant for public use and enjoyment and consequently protected by the state under the legal duty imposed by the doctrine; • the principle of sustainable development recognised by international law as well as Indian law; and • the recognition in particular of the principle of intergenerational equity. The incorporation of these rules into the reasoning of the court led to this conclusion: The Judicial Wing of the country, more particularly this court, has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under art 21 of the Constitution of India. 24 There is accordingly a fundamental right for the environment to be protected and for natural resources to be conserved. Another example of the very proactive and dynamic approach adopted by the Supreme Court of India.

A right to life leading to an environmental right Germany The right to life embedded in some international instruments has led to an inchoate environmental right. 25 A right to life is a feature of many constitutions. But not all courts have not taken such a positive and comprehensive view as the Supreme Court of India. Consider the arrangements in Germany. Article 2(2) of the Basic Law of Germany states: [4.110]

"imposes an objective, protective duty on the government to provide for an effective procedure to enable individuals to assert their right to life and physical integrity against the potentially toxic emissions of a state-licensed or state-owned nuclear power plant". 27 It is a procedural duty only. The provision in the Constitution thus has effect only in the context of this implied procedural duty upon government to protect the environment so as to ensure compliance with the fundamental right to life.

Japan The law in Japan goes beyond a mere procedural duty to protect the environment. Thus a fundamental right to life may protect the environment even more indirectly through a threat to the cultural integrity of the community. Article 13 of the Constitution of Japan states:

(4.120]

All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

This provision played a part in the decision of the Sapporo District Court in the

Nibutani Dam case in 1997. 28 The Ainu people are an indigenous community who were the owners or heirs of owners of land subject to an administrative confiscation of their land ownership rights. The confiscation was challenged in the courts. The proposal was to construct a dam on the river leading to the accumulation of water in an artificial lake. The purpose was to control the flow of the waters of the river in flood, secure irrigation, provide water, and generate electricity. The project would quite clearly have major environmental consequences. It would also, it was alleged, substantially interfere with - if not destroy - the way of life and the culture enjoyed by the Ainu people who resided there. Much depended upon the cultural characteristics of the Ainu people. What are they? The Ainu people principally inhabited riverside areas building up territorially bonded groupings in villages known as "kotan" and managing their lives around hunting, gathering and fishing. They used their own language, Ainu, which is non-written and based their culture upon an oral tradition that respects natural things including wild animals and fish. Their values rested in nature worship, that is, in living together with the gods who gave humankind this bounty of nature. The Ainu people called their territorial space "ioru" as an individual geographic unit where they could carry out their lives. With their homes located there, the people of an ioru established production sites and gravesites for communal use. Other special places such as mountains and rivers with mythical traditions existed for an ioru, and gave structure to Ainu people's lives. For the Ainu, because the ioru represented where one was born, lived and died, people living there were bound together in a "common-roots grouping". Accordingly, we recognise that the ioru, including the

Everyone shall have the right to life and to physical integrity. The liberty of the individual shall be inviolable. Intrusion on these rights may only be made pursuant to a statute. The right to life guaranteed what Ernst Brandl and Hartwin Bungert have described as "an ecological existential minimum". 26 In other words, if the right to life is meaningful, it implies the existence of an environment of a quality sufficient to sustain such a right to life. These commentators have concluded that Art 2(2) 23

Intellectual Forums Tirupathi v State of Andhra Pradesh [2006] 2 Supreme

Court Journal 293

at 317-321. 24

Intellectual Forums Tirupathi v State of Andhra Pradesh [2006] 2 Supreme

Court Journal 293

at 322. 25 26

For example, Lopez Ostra v Spain (1994) 20 EHRR 277 and Guerra v Italy (1998) 26 EHRR 357: see above [2.190]. Ernst Brandl and Hartwin Bungert (1992) at 34.

98 [4.110]

I CH 4

27

Ernst Brandl and Hartwin Bungert (1992) at 34 and 35.

28

Kayano v Hokkaido Expropriat ion Committee (1997) 38 ILM 397. Article 27 of the International Covenant on Civil and Political Rights 1966 [1980] ATS No 23, (1967) 6 ILM 368 also played a

part in the decision of the court. For further discussion on Art 27, see above [2.200]. [4.120] 99

PART I The Normative Context of Environmental Law

nearby mountains and rivers having mythical traditions, is not merely a historical legacy, but something for which present-day efforts to sustain its ethnic culture are extremely important. 29

The values of nature are part of the cultural values of the Ainu people - probably even in a moral or religious sense. There is, on the one hand, respect for natural things - wild animals and fish - and recognition of the significance of mountains and rivers. The environment thus has cultural value for the Ainu. But, on the other hand, it is more than that. Their culture is part of their daily lifestyle and their daily lifestyle is partly dependent upon the environment. If there is harm to the environment, there is harm to their culture. The question for the court in this case was whether this infringed the right to life, liberty and the pursuit of happiness in Art 13 of the Constitution. The court argued that "in light of its wording and historical origin, this provision demands the highest regard for the individual in his or her relationship with the state. It manifests the principles we call individualism and democracy as the recognition of the particular worth of all citizens, who collectively constitute the state, in the state's exercise of governance". 30 The key however was to link environment through culture to the fundamental right to life, liberty and the pursuit of happiness. The link was established in this way: The minority's distinct ethnic culture is an essential commodity to sustain its ethnicity without being assimilated into the majority. And thus, it must be said that for the individuals who belong to an ethnic group, the right to enjoy their distinct ethnic culture is a right that is needed for their self-survival as a person. We believe the guarantee of that right fulfils the basic tenets of democracy by meaningfully respecting the individual whilst striving for the majority's comprehension of and respect for the circumstances faced by the socially weak. 31

The right to enjoy a distinct culture - in this case a minority culture - was linked to the right of an individual to survival. Which was in turn linked to a right to life, liberty and the pursuit of happiness. Article 13 of the Constitution thus guaranteed the right of the Ainu people to enjoy their distinct ethnic culture which in this case derived from their close association with nature and the environment. A right to life, therefore, may be manifested in a right to culture which is itself manifested in the relationship between the culture in question and the environment.

Summary [4.130] Fundamental values embedded in constitutional instruments are expressed in different ways and in many different forms. For example, rights, duties, policies, procedures. Some are stated to be enforceable; others are stated to be non-enforceable; sometimes the instrument is silent on this question. The substance of the value, however expressed, might relate to the environment, particular elements of the environment, nature, particular elements of nature, culture, ways of life or even life itself. An environment-related right may thus be derived from a provision in a constitution which on the face of it is only tenuously

29

Kayano v Hokkaido Expropriation Committee (1997) 38 ILM 397 at 411.

30 31

Kayano v Hokkaido Expropriation Committee (1997) 38 ILM 397 at 418. Kayano v Hokkaido Expropriation Committee (1997) 38 ILM 397 at 419.

The Constitutional Foundations of Environmental Law

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linked to nature. The use of a constitution or a similar instrument as the mechanism for expressing a fundamental right or value is a complex and sophisticated task. Perhaps it is too complicated. It is easy to sympathise with the conclusion reached by Karl-Heinz Ladeur: Environmental protection as a constitutional issue is somewhat ambiguous because it is related to structural problems of the balance of powers, the coordination of conflicting rights and of different dimensions of protection (substantive, procedural, "negative" and "positive"), not to mention the problem of transforming state competence to impose limits on the use of civil liberties into substantive constitutional duties of individuals (or firms). If these problems are taken seriously new conceptual approaches to the constitutional management of complexity have to be developed. Otherwise the constitutionalisation of environmental protection will end up in another exercise in the art of legal lyrics. 32

CONSTITUTIONAL ARRANGEMENTS IN AUSTRALIA [4.140] Australia has inherited the Westminster model of Parliamentary democracy.

There is thus no historical tradition of constitutionally entrenched rights or duties. Any restrictions upon the Westminster system in the United Kingdom itself derive from its membership of the European Union. The governance of the Commonwealth of Australia, of course, is regulated by the Commonwealth Constitution - much influenced by the Constitution of the United States of America. So what is the position in Australia? Are there any environmental rights, environmental duties or fundamental statements about environmental values in the Commonwealth Constitution? The short answer is in the negative but the position is much more complicated.

The relevance of the environment [4.150] The constitutional arrangements in the several jurisdictions of Australia are

concerned essentially with systems of governance. These arrangements are no doubt based upon principles of representative parliamentary democracy. None of the constitutional instruments contains any statement or provision to that effect. Nor is there any reference in these constitutional instruments to the environment or to nature as such. This is no surprise since the values of the environment and of nature were of little political interest when these constitutional arrangements were being put in place. Public policy during the 19th century and the first half of the 20th century was for the most part driven by economic and social development - a phenomenon of the utilitarian values common at that time. Australia was by no means exceptional in adopting these priorities. These priorities are reflected in the constitutional arrangements put in place during that period and still in force today. The Commonwealth of Australia is responsible, under the rules of international law, for the quality of the Australian environment. However, the federal structure of governance in Australia distributes legislative power between the 32

Karl-Heinz Ladeur, "Environmental constitutional law" in Gerd Winter ( ed), European Environmental Law - a Comparative Perspective (Dartmouth Publishing, Dartmouth, 1996) pp 33 and 34.

100 [4.130]

[4,150] 101

PART I The Normative Context of Environmental Law

Commonwealth and the States. The constitutions of the colonies which became the States at the time of federation did not address the quality of the environment but disclosed a significant interest in what today would be described as natural resources. In relation to Queensland, for example, s 40 of the Constitution Act 1867 as retained by s 69 of the Constitution of Queensland 2001 states:

The Constitutional Foundations of Environmental Law

to prevent overlooking of an adjacent building. This involved the relationship between the right in the charter and the relevant planning arrangements. This relationship was described in these words: Although a person's right to privacy in his or her home is fundamentally important, and this is now reinforced by the Charter, the effective application of the planning regulatory framework in Victoria is also important. That framework seeks to balance public and private rights, and seeks to provide for the fair, orderly and sustamable development and use of land by imposing certain restrictions on the use and development of land that most would consider justified in a free and democratic society. The planning framework specifically attempts to deal with overlooking, and thus expressly recognises the right to reasonable privacy. 34

The entire management and control of the waste lands belonging to the Crown in the said State and also the appropriation of the gross proceeds of the sales of such lands and of all other proceeds and revenues of the same from whatever source arising within the said State including all royalties mines and minerals shall be vested in the legislature of the said State.

The waste lands of the Crown comprised all the lands in the State that had not been allocated by the Crown to someone else. This means now that the right to manage and control the natural resources of Queensland is vested in the Parliament of Queensland rather than in the Governor. So the ownership of the natural resources of Queensland by the Crown under the common law has been effectively reduced to radical title. It is not beneficial ownership. The position in all the States is in essence the same. Effectively, therefore, the responsibility for the management of Australia's natural resources and environment rests with the legislatures of the States.

I CH 4

The issue thus became the relationship between the right to privacy in the Charter and the right to reasonable privacy recognised in the planning framework. In these circumstances, the arrangements contemplated by the planning framework designed to ensure "reasonable privacy" were not incompatible with the right to privacy in the Charter. 35

Cooperative environmental management [4.170] From all of these constitutional arrangements it follows

The relevance of human rights [4.160] Although there is nothing to prevent the legislatures of the States from

including environmental values in their constitutions, they have chosen not to do so. There has however been a very limited recognition by States and Territories of human rights. The Charter of Human Rights and Responsibilities Act 2006 (Vic) is silent about environmental values. Nevertheless, it incorporates within its framework of human rights provisions reflective of human rights recognised internationally, regionally and nationally in other jurisdictions. These are: • the right to life in s 9; • the right to privacy and reputation in s 13; • the cultural rights in s 19; and • the property rights in s 20. Section 9 includes the proposition that every person has the right to life. As we have seen earlier in this chapter, such a right has been interpreted in other jurisdictions to include a right to life of an acceptable quality and this includes a right to life in an environment free from pollution and harm. Similarly, the right in s 13 not to have privacy, family or home unlawfully or arbitrarily interfered with, has in other jurisdictions included an indirect right in relation to the environment. The right to enjoy a particular culture in s 19(1) has been interpreted in other jurisdictions as a right in relation to the environment where this is a specific aspect of the culture in question. Then there is the right in s 20 not to be deprived of property other than in accordance with law. So far, it would appear, it is the right to privacy which has attracted judicial consideration in Victoria. The issue of privacy arose in the case of Smith. 33 The question was the validity of a condition in a planning permit requiring a screen to be installed on a balcony 33

Smith v Hobsons Bay City Council (2010) 175 LG ERA 221.

102 14.160]

that the Commonwealth has no formal involvement in the management of Australia's natural resources and their environment unless the Parliament of the Commonwealth can justify its involvement on the basis of one or more of the heads of legislative capacity in s 51 of the Commonwealth Constitution. The subject matter of s 51 includes activities that may involve the use, development or conservation of natural resources. The only natural resource specifically covered by s 51 is fisheries, but only fisheries in Australian waters beyond territorial limits. 36 The lack of specific environmental legislative capacity has not proved to be a major impediment to Commonwealth involvement in protecting the environment. For the High Court of Australia has decided that environmental concerns are relevant to decision-making by the Commonwealth provided the subject matter of the decision of the Commonwealth itself falls within the constitutional powers of the Commonwealth under s 51. 37 Even so, notions of co-operative federalism underpin the way in which the Australian environment has been managed. Indeed, as Geoffrey Sawer has noted, the principal function of the States is "legal regulation and administration" and the function of the Commonwealth is "to co-ordinate enquiry, general policy formulation and standard setting, and specifying budget priorities". 38 The same point in effect was made by Michael Crommelin when he concluded that "the range of instruments available to the states for the management of natural

34

Smith v Hobsons Bay City Council (2010) 175 LG ERA 221 at 229.

35

Smith v Hobsons Bay City Council (2010) 175 LG ERA 221 at 229. See also Magee v Boroondara City Council (2010) 177 LGERA 92.

36

Commonwealth Constitution, s 51(x).

37

Murphyores Inc Pty ltd v Commonwealth (1976) 136 CLR 1.

38

Geoffrey Sawer, "Conservation and the law" in AB Costin and HJ Frith ( eds), Conservation (Penguin Books, Harmondsworth, 1974) p 278. 14.170] 103

The Constitutional Foundations of Environmental Law

I CH 4

PART I The Normative Context of Environmental Law

resources is much more extensive than that available to the Commonwealth". 39 This remains so particularly since the conservation of the environment is not confined to regulation but now increasingly includes management techniques in the widest sense. 40 However the Commonwealth has shown a more direct interest in managing Australia's natural resources - first in the context of environmental protection and conservation since 1999, then in the context of water since 2007 and more recently in responding to climate change. For many years co-operative federalism manifested itself in practice by the Commonwealth and the States entering into arrangements according to which programmes funded by the Commonwealth would be implemented by the States. The National Water Initiative of 2004 assumed the form of an agreement between the parties that comprised the Council of Australian Governments (COAG). The National Water Initiative was designed to respond to the overuse and overallocation of water resources particularly those of the Murray-Darling Basin. At that time the waters of the Murray-Darling Basin were managed strategically by the Commonwealth and the States together but operationally in accordance with the laws of the States.

Issues in cooperative water resources management The National Water Initiative was followed by a number of more specific agreements. One such agreement between the Commonwealth and New South Wales culminated in the Achieving Sustainable Ground Water Entitlements Programme. This project led to a funding agreement by which the Commonwealth provided funds to the State for the project. The project was implemented when the state made the appropriate amendments to the relevant Water Sharing Plan with the effect of reducing the amount of groundwater able to be extracted. Several holders of groundwater extraction entitlements challenged the legality of these arrangements. A whole range of issues was debated before the Court of Appeal of New South Wales. 41 However, for present purposes, the issue was whether the Commonwealth could provide funds to achieve an outcome in respect of a matter over which the Commonwealth exercised no legislative capacity. The response of the Court of Appeal of New South Wales was clear: [4.180)

The water entitlements which existed before the 2006 Plan were a creature of a State act. If there was to be modification it had to be by State legislation. The Commonwealth encouraged, indeed may well have determined, a critical aspect of that modification. It did so by imposing a condition on its financial grant in order to implement a policy which it could not achieve without the co-operation of the State. This cannot be categorised as a "device" just because the Commonwealth could not achieve its policy objectives, or chose not to do so, by force of its own legislative power. 42

This, however, was not an end to the litigation. When the matter reached the High Court of Australia, two particularly important issues were raised. They involved

39

Michael Crommelin, "Commonwealth involvement in environment policy: past, present and future" (1987) 4 Environmental and Planning Law Journal 101 at 109.

40

See below Part Ill.

41

Arnold v Minister Administering Water Management Act 2000 (2008) 163 LG ERA 429.

42

Arnold v Minister Administering Water Management Act 2000 (2008) 163 LG ERA 429 at 459.

the interpretation of ss 100 and Sl(xxxi). In the meantime, the High Court had 43 made its decision in the related case of ICM Agriculture.

The section 100 issue [4.190]

Section 100 of the Constitution of the Commonwealth states:

Toe Commonwealth sha!J not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

One of the arguments in the Arnold case in the Court of Appeal in New South Wales, was that the funding agreement between the Commonwealth and the State, the Natural Resources Management (Financial Assistance) Act 1992 and the National Water Commission Act 2004 - both of the Commonwealth - infringed s 100 of the Constitution. The Court of Appeal concluded that the prohibition enacted by s 100 was limited in its application to "any law or regulation of trade or commerce" enacted by the Commonwealth. These words, reflected also in ss 98 to 102 of the Constitution, indicated that s 100 applied ""only to laws which can be made 44 under the power conferred by s Sl(i) ie the trade and commerce power". Effectively the Court of Appeal distinguished between laws relating to trade and commerce and laws whose objective was "ensuring sustainable yield in national water resources". 45 The High Court agreed. When the matter reached the High Court of Australia in 2010, a further issue was whether s 100 of the Constitution applied to ground water resources or only to waters of rivers. For what may be described as historical as well as doctrinal reasons, the High Court concluded, as the Chief Justice put it, that "there is no plausible basis for construing the . "f u 46 limitation as applying to undergroun d water m aqm ers .

The section 51(xxxi) issue [4.200)

Section Sl(xxxi) of the Constitution states:

The acquisition of property on just terms ftom any State or person for any purpose in respect of which the parliament has power to make laws.

On the face of it, the Commonwealth is authorised to enact legislation about the acquisition of property but restricted to do so on just terms. One of the issues for the High Court in the ICM case was whether the Constitutional guarantee in s Sl(xxxi) applied to the funding agreement between the Commonwealth and New South Wales and implemented in accordance with the Water Management Act 2000 of New South Wales. According to the High Court s 51(xxxi) of the Constitution applied to the way New South Wales implemented its obligations under the agreement with the Commonwealth. Thus:

43 44 45 46

ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LGERA 373. Arnold v Minister Administering Water Management Act 2000 (2008) 163 LGERA 429 at 452. Arnold v Minister Administering Water Management Act 2000 (2008) 163 LGERA 429 at 453· Arnold v Minister Administering Water Management Act 2000 (2010) 172 LG ERA 82 at 93-

[4.200] 105 104 [4.180]

PART I The Normative Context of Environmental Law

The result is that the legislative power of the Commonwealth conferred by ss 96 and Sl(xxxvi) does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms. 47

Accordingly, the substantive issue was whether s Sl(xxxi) of the Constitution had been infringed in the circumstances of the case. Were the bore licences which had been replaced by aquifer access licences as a result of amendments made to the water sharing plans in accordance with the Water Management Act 2000 (NSW) property and, if so, had this been acquired? The majority took the view that the licences were a species of property 48 and one of the justices decided that they were unequivocally property. We shall return to these issues later in Chapter 9. However, the majority concluded that there had been no acquisition. The legal relationship between the holders of the licences and the State of New South Wales had not changed. The focus of the argument was that water was a public natural resource. Thus: The State always had the power to limit the volume of water to be taken from that resource. The State exercised that power from time to time by legislation imposing a prohibition upon access to and use of that natural resource, which might be lifted or qualified by compliance with a licensing system. The changes of which the plaintiffs complain implemented the policy of the State respecting the use of the limited natural resource, but that did not constitute an "acquisition" by the State in the sense of s Sl(xxxi). 49

In other words, even if the licences were property, nothing had been acquired in

the relevant sense simply because the licences granted under the legislation were inherently susceptible to change in accordance with the legislation. Significantly, there arose once again, for determination by the High Court, the relationship between private rights and duties and public rights and duties. The concept of property, as we shall see, connotes the existence of private rights. While private or individual rights may be protected constitutionally - even in the context of s Sl(xxxi) of the Commonwealth Constitution - their protection is not absolute because of their relationship with the range of other rights protected by the Constitution.

The Constitutional Foundations of Environmental Law

I CH 4

• the race power; 5 3 and • the external affairs power. 54 Others may be relevant in particular circumstances: for example, defence and quarantine. Once the legislation is about overseas trade and con:imerce, _for example, there is no constitutional impediment to the Commo~weal_th mtroducmg environmental factors incidental to trade and commerce considerations.

overseas and interstate .trade and commerce Trade and commerce involve essentially the exchange of commodi~es. But more than exchange is involved. The activity of trade and commerce can mclude transportation, purchase and sale. If there are environmental aspects to transportation, for example, then these are constitutionally relevant. The more critical question is whether the manufacture or production of goods and commodities constitutes trade and commerce. Where trade and commerce begin and end is perhaps a matter of circumstances. However the High Court of Australia has suggested that it may be necessary in certain circumstances "to enter the factory or the field or the mine". 55 If so, then primary production, manufacture, and distribution as well as purchases and sales fall within trade and commerce. In all cases, it should be recalled, there must be an overseas or interstate connection. James Crawford has helpfully concluded: [4.220)

It is possible for the Commonwealth not merely to require compli31:c~ in practice

with certain environmental standards in production, manufacture or rrurung of goods for interstate trade or export, but to impose those standards as a ma_tter of law through regulating the process of production, manufacture or extrac~on for the purposes of interstate trade or export. It would be no objection to such legislation that the goods were not at the moment of application of the standards identifiable m any precise way as destined for interstate or overseas trade as distinct from domestic consumption. 56

Trading corporations Similar issues arise in relation to the trading corporations power. A trading corporation is a corporation that trades. But what is trade? Originally the power was interpreted to exclude control by the Commonwealth of the ope~a_tional activities of a corporation once it had lawfully entered upon its activity of operation. 57 It seems clear, however, that the power of the Commonw~alth with respect to trading corporations now includes the control and regulation of the trading activities of these corporations. For this purpose trade means the same as in the case of the overseas and interstate trade and commerce power. What is more questionable is whether the trading corporations power_ applies to the non-trading activities of trading corporations. Although the question was [4,230]

The power of the Commonwealth to make laws Apart from the specific power of the Commonwealth to legislate with respect to fisheries in Australian waters beyond territorial limits, 50 the legislation of the Commonwealth has relied for the most part upon four heads of legislative power in s 51 for its involvement in managing the environment: [4.210)

• the overseas and interstate trade and commerce power; si • the trading corporations power; 52 47 48 49 50 51 52

ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LGERA 373 at 387 and 388. ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LG ERA 373 at 414. ICM Agriculture Pty Ltd v Commonwealth (2009) 170 LG ERA 373 at 396.

Commonwealth Constitution, s 51(x). Commonwealth Constitution, s 51(i). Commonwealth Constitution, s 51(xx).

106 14.210]

53 54 55 56 57

Commonwealth Constitution, s 51(xxvi). Commonwealth Constitution, s 51(xxix). O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 598.

James Crawford, "The Constitution and the environment" (1991) 13 Sydney Law Review 11 at 26. Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 354. 14.230] 107

PART I The Normative Context of Environmental Law

not definitively answered by the High Court of Australia in the Tasmanian Dam 58 case, James Crawford has once again suggested that the broader view is likely to be adopted. Trade thus includes primary production and manufacture but a trading corporation engages in other activities which also fall within the scope of the Commonwealth power. James Crawford therefore concludes: It is probable then that the corporations power gives the Commonwealth the power to control the environmental impact of the mining, manufacturing or other activities of tracling or financial corporations, as it certainly does with respect to foreign corporations. 59

Any activity of a trading corporation is thus potentially subject to Commonwealth control and this includes the environmental aspects of these activities.

The Constitutional Foundations of Environmental Law

this question, the dissenting judgment of Kirby J conclu~e~ that the le~slation in uestion was detrimental to the interests of the Abongmal race. His Honour ~ccepted that the provision in the Constitution was ambiguous. And one of the arguments used to solve this ambiguity was this: The final consideration which reinforces my conclusion is the resolute steps taken by international Jaw to forbid and prevent detriment to, and adverse discrimination • race. 67 against, people by reference to th eu

It was the very clear set of values emanating from international law that convinced his Honour to reach this conclusion: The [relevant] Act does not answer to the description of a law with respect to _the people of any race for whom it is deemed necessary to mak~ sp_ec1_al laws. It _is a special Jaw; that is true. But it is detrimental to, and adversely discnnunatory agamst, people of the Aboriginal race of Australia by reference to theu race._ As such _it falls outside the class of laws which the race power m the Australian constitution permits. 68

Race [4.240] Then there is the race power which provides that the Parliament of the

Commonwealth may make laws with respect to "the people of any race for whom it is deemed necessary to make special laws". 60 The laws must be special in the sense that they are "of their nature special to the people of a particular race". 61 This may arise "because of their special needs or because of the special threat or problem which they present". 62 In the Tasmanian Dam case 63 one of the issues was the validity of a set of provisions in Commonwealth legislation that sought to protect Aboriginal sites, Aboriginal artefacts or Aboriginal relics. The High Court of Australia approached the issue from the perspective of cultural heritage. The legislation purported to protect Aboriginal cultural heritage. Was this a special law for the people of the Aboriginal race? Justice Mason responded in these words: The answer is that the cultural heritage of a people is so much of a characteristic or property of the people to whom it belongs that it is inseparably connected with them, so that a legislative power with respect to the people of a race, which confers power to make laws to protect them, necessarily extends to the making of laws protecting their cul tura1 heritage. A law which protects the cultural heritage of the people of the Aboriginal race constitutes a special law for the purpose of para (xxvi) because the protection of that cultural heritage meets a special need of that people. 64

The perceived purpose of the statutory provision analysed by the High Court in the Tasmanian Dam case 65 was to protect the cultural heritage of the people of a particular race. It was argued in the later Kartinyeri case 66 that a law would be valid under the race power only if it was enacted for the benefit of the people of the race in question. While the High Court provided no authoritative answer to 58

Commonwealth v Tasmania (1983) 158 CLR 1.

59

James Crawford (1991) at 25.

60

Commonwealth Constitution, s 51(xxvi).

61

Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 210.

62

Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 210.

63

Commonwealth v Tasmania (1983) 158 CLR 1.

64

Commonwealth v Tasmania (1983) 158 CLR 1 at 159.

65

Commonwealth v Tasmania (1983) 158 CLR 1.

66

Kartinyeri v Commonwealth (1998) 195 CLR 337.

I CH 4

The race power is perhaps different because it is - at least according to _Kirby J concerned with fundamental values. Transpose this argument to the envuonment. In essence Kirby J implied by his reasoning the existence of fundamental values that should - at least in the case of ambiguity - be respected and enforced. The race power on the face of it has nothing to do with the environment. It has much to do with culture. It has already been suggested that there is a clear link between culture and environment. 69 To the extent, therefore, that the race power is about the culture and the cultural heritage of a race, then it is also about the environment in which that race has its being.

External affairs [4.250] Perhaps the most important source of legislative capacity for the

Commonwealth is the external affairs power. What are external affairs? First, something that happens outside Australia is for this reason alone a matter of external affairs. Then, something which is inherently or intrinsically of international concern is a matter of external affairs - whether or not there is any treaty or international agreement about it. Finally, it is generally recognised that the implementation of obligations in an international treaty or convention is_ a ~atter of external affairs. Until the decision of the High Court of Australia m the Tasmanian Dam case 70 it was unclear whether the subject matter of the international treaty or convention implemented by Commonwealth legislation was required also to be a matter of international concern. It is now settl~d that the subject matter of the international convention need no_t necessarily be ~f international concern. The mere fact that the arrangement 1s between Australia and another state within the international community is sufficient to give it international character. This does not mean that the Parliament of the Commonwealth can enact legislation on the subject matter of an international convention without further 67

Kartinyeri v Commonwealth (1998) 195 CLR 337 at 419.

68

Kartinyeri v Commonwealth (1998) 195 CLR 337 at 422.

69

See above [2.160}[2.210].

70

Commonwealth v Tasmania (1983) 158 CLR 1.

108 14.240)

[4.250] 109

The Constitutional Foundations of Environmental Law

PART I The Normative Context of Environmental Law

regard to any other constraining factors. First of all, the international convention must create an obligation that is sufficiently precise to enable it to be enforced. Further, the measures adopted by the Parliament of the Commonwealth to discharge this obligation must be "appropriate and adapted" 71 to achieving the objectives of the international convention. In other words there needs to be a reasonable proportionality between the obligations in the convention and the legislation of the Commonwealth implementing these obligations. The scope and substance of international environmental conventions have increased dramatically over the last decade or so. 72 Many of the international obligations imposed upon Australia by these conventions require the regulation of a wide range of activities that impact upon the quality of the environment. And many of these activities take place within the jurisdiction of Australia. Australia's international environmental obligations give to the Commonwealth, acting through the external affairs power, the opportunity to regulate, control and manage the environment of Australia in ways that are limited only by the terms of the international agreements themselves.

Financial matters [4.260] The capacity of the Commonwealth to control fiscal, budgetary and

financial matters enables it to use financial incentives and disincentives for the purpose of ensuring the environment is managed in accordance with Commonwealth policies. Although the Parliament of the Commonwealth has power to make laws with respect to taxation, 73 the imposition of taxes has not been one of the options preferred by the Commonwealth in relation to protecting the environment. There are nevertheless examples of the imposition of levies linked to the protection of environmental values. 74 There is, moreover, an indication that the Parliament of the Commonwealth is experimenting with a system of financial charges payable where the objectives of statutory schemes for protection of the environment are not met. The Renewable Energy (Electricih;) Act 2000 (Cth), for example, has three objects:

I CH 4

shortfall for the year in question. 77 A renewable energy shortfall arises when the amount of electricity generated from renewable sources is less than the certificated amount. The amount of any charge depends upon the relevant rate multiplied by the amount of renewable energy shortfall. 78 The Commonwealth over the years has tended to favour the use of financial incentives rather than the imposition of charges. The Commonwealth Constitution specifically enables the Parliament of the Commonwealth to grant financial 79 assistance to any State on such terms and conditions as the Parliament thinks fit 80 and to grant bounties on the production or export of goods. Financial incentives to individuals and private bodies have come in various forms. Bounty, for example, was payable until 2006 to the producers of fuel ethanol produced from biomass feedstocks in quantities exceeding 350,000 litres. 81 The purpose was to assist the development of a "competitive, robust and ecologically sustainable fuel ethanol industry". 82 The use of "cleaner fuels" - that is fuels that emit less pollution - in the road transport industry was encouraged until 2003 by the Energy Grants (Credits) Scheme. 83 These particular incentives are no longer available since the repeal of the legislation. Grants to States have assumed different forms. For example: • an agreement between the Commonwealth and a State in relation to a specific project subsequently approved by legislation of the Commonwealth; • the direct grant of financial assistance by the Commonwealth to a State for a specific project authorised directly by legislation of the Commonwealth; and • the provision of financial assistance by the Commonwealth to a State for a specific project in accordance with an arrangement under the authority of general legislation of the Commonwealth. Arrangements such as these were designed to facilitate the use and development of the resources of the environment. For example: • the construction of pipelines and waterworks in South Australia; 84 • works for the supply of water to rural areas in Western Australia; 85

• to encourage the additional generation of electricity from renewable resources; • to reduce emissions of greenhouse gases; and

• the development of water resources for hydroelectric purposes in Tasmania; and

• to ensure that renewable energy sources are ecologically sustainable. 75

• the development of both softwood and native forestry in Tasmania.

This is achieved by a complicated scheme which places a number of responsibilities upon those who make a wholesale acquisition of electricity. This is an acquisition either from the National Electricity Market Management Company or from a person who did not acquire it from another person. 76 A charge is payable by the person who made the acquisition and where there has been a renewable energy 71

Commonwealth v Tasmania (1983) 158 CLR 1 at 141.

72

See above (3.100]-(3.160].

73

Commonwealth Constitution, s 51(ii).

74 75

For example, the Aircra~ Noise Levy Act 1995 (Cth) and the Aircra~ Noise Levy Collection Act 1995 (Cth). Renewable Energy (Electricity) Act 2000 (Cth), s 3.

76

Renewable Energy (Electricity) Act 2000 (Cth), ss 31- 33.

110 14.260]

77 78

Renewable Energy (Electricity) Act 2000 (Cth), ss 35 and 36.

79 80

Commonwealth Constitution, s 96.

81

Bounty (Fuel Ethanol) Act 1994 (Cth), ss 7 and 10: now repealed.

87

Renewable Energy (Electricity) Act 2000 (Cth), s 37.

Commonwealth Constitution, s 90.

82

Bounty (Fuel Ethanol) Act 1994 (Cth), s 3: now repealed.

83

Diesel and Alternative Fuels Grants Scheme Act 1999 (Cth), s 4: now repealed.

84 85

Morgan-Whyalla Waterworks Agreement Act 1940 (Cth): now repealed.

86 87

86

Western Australia (South-west Region Water Supplies) Agreement Act 1965 (Cth): now repealed. Tasmania Agreement (Hydro-Electric Power Development) Act 1968 (Cth). So~wood Forestry Agreement Act 1972 (Cth); Tasmanian Native Forestry Agreement Act 1979 (Cth): now repealed. 14.260] 111

PART I The Normative Context of Environmental Law

The Constitutional Foundations of Environmental Law

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This project-specific approach was superseded by a series of discretionary schemes more directly linked to environmental conservation. 88 This has similarly been replaced by the Natural Resources Management (Financial Assistance) Act 1992 (Cth). Although its principal object is to facilitate the development and implementation of integrated approaches to natural resources management within 89 Australia, it is also concerned with conservation. The expression "natural resources management" paraphrased slightly means:

• environmental protection linked to .the conservatio~ of na~e, . :aste minimisation, clean production and envuonmental pollution prevention,

• any activity relating to the management of the use, development or conservation of one or more of soil, water or vegetation; or

• natural resources management linked to the conservation of soil, water and · 101 vegetation.

• any activity relating to the management of the use, development or conservation of any other natural resources for the purposes of such an activity. 90

Th dministration of the legislation specifically requires consideration of the r:c:ples of ecologically sustainable development. 102 Nevertheless, the success of tscretionary schemes such as these depends ultimately upon ~ow they . are administered. While the legal system may empower such a system, It can do little to control it.

Two other schemes enacted by the Commonwealth have had a more particular focus upon conservation and protection of elements of the environment. Section 324ZB of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) enables the Commonwealth to provide financial assistance or other assistance to the States and Territories and to any other person for the identification, promotion, protection or conservation of a National Heritage place. A place is included in the National Heritage List if it meets one of the National Heritage criteria prescribed by regulations. These relate to the heritage values that are natural, indigenous or historic. 91 The scope of the Natural Heritage Trust of Australia Act 1997 (Cth) is more extensive and more focussed. It sets up the Natural Heritage Trust of Australia 92 Reserve. Funds in the reserve may be used to provide grants to a State or Territory or to any other body or person. 93 The purposes for which the funds may be made available are these: • the National Vegetation Initiative linked to the conservation of native vegetation and biodiversity; 94 • the Murray-Darling 2001 Project linked to achieving sustainability in the Murray-Darling Basin; 95 • the National Land and Water Resources Audit designed to estimate the causes and effects of environmental degradation; 96 • the National97Reserve System linked to an adequate and representative system of reserves;

88

For example, States Grants (Nature Conservation) Act 1974 (Cth) (repealed); Environment (Financial Assistance) Act 1977 (Cth) (repealed); National Water Resources (Financial Assistance) Act 1978 (Cth) (repealed).

89 90

Natural Resources Management (Financial Assistance) Act 1992 (Cth), s 3(2).

• the Coasts and Clean Seas Initiative linked to the protection of the marine environment; 98

• sustainable agriculture linked to the economic, social and ecological outcomes of agricultural activities; 100 and

Commonwealth involvement in environmental management The nature of Commonwealth involvement

14.2701 The capacity of the Parliament of the Commonwealth to make _laws about the environment is one thing. Whether and how it has done so are qwte_ ano~er. There have been examples over the last few decades of the four ways m which Geoffrey Sawer has described the involvement of the Commonweal~: _coordination, general policy formulation, general standard setting and sp~c~g budget priorities. 103 There have been a number of examples of legislation authorising the expenditure of money to achieve the outcomes of Common~eal~ li Although the Commonwealth has been less involved in standard setting, It po cy. . . di. 1 has on a number of occasions - particularly m relation to the more tra hona forms of emission standards for pollution control - provided guidelines for other government agencies and the private sector. 104 Perhaps even more importantly, the Commonwealth over recent years has provided direction in the management of the Australian environment by setting national strategies through various statements of polict Mu