The process sustainability can be understood from the observation of the natural systems where the system is self sustaining, diverse and able to produce balanced ecological needs. The civilisation runs on the resources that are collected from the natural environment. The past human experience and the current impending problems is forcing the current world civilisation to think sustainably where the destruction and damage related protective approach can be implemented into the system (Hoekstra and Wiedmann, 2014). These protective measures in the form of legislation and its implication would regulate the social science, environment, technology and the businesses. The current world policy direction generated from the ‘world summit on social development’ of 2005 focuses on three pillar of sustainability (Hoekstra and Wiedmann, 2014). These pillars are the social development, economic development and the environmental protection for sustainability. In the environmental protection part the approach is to protect the lives, livelihood and the heath of people by managing the different environmental factor, pollution and the climate change. The current sustainable approach of operation came a long way through the continuous development of legislations and its implementation (Hoekstra and Wiedmann, 2014). In the current essay two such environment related case would be discussed to understand their implication for the legislative development.
The policy development in the world for the environmental protection is happening for a long time. One of such event was the ‘Rio Declaration’ of UNCED’s earth summit in the year 1992. Some of the precautionary measures were mentioned in that summit (Moore and Gross, 2012). Soon after that the courts in Australia began to embrace those principles. One of the prominent cases in that regard was the ‘Leatch v National Parks and Wildlife Service’. This was one of the earliest cases that started the discussion of these principles for the environmental protection in Australia through a meaningful approach. ‘New south Wales’ ‘Land and Environment Court’ was approached to appeal for the process (Zander, 2010). ‘National Parks and Wildlife’ director general licence issue to the ‘Shoalhaven City Council’ a local authority of government for killing the endangered fauna was main factor for the revision of merit of this action. This was done for the proposed construction of road. The ‘national parks and wildlife ACT 1974’ s92B(5) was in this case for the class 1 suite by Ms May. The specific Act was used from the perspective of new amendment on 1991 that ‘Endangered Fauna (Interim Protection) Act’ where the better protection for the fauna was amended into the ACT (Austlii.edu.au, 1993). This amendment is also a result of another court case ‘Corkill v Forestry Commission’. From the director general (DG) office a proper survey was done with regard to the precautionary principle application from the state, national and international jurisdictions.
The reply from DG was that the incorporation of these principles is already done in the domestic law prior to the development of those principles as most of those are the commonsense. Under the uncertainty of scientific exercise the principle are the tools to avoid the irreversible and serious harm to the situation of environment (Zander, 2010). During these types of ignorant and uncertain situations the decision maker needs to maintain caution (Austlii.edu.au, 1993). Upon hearing the case and judging the merit of the case the judge commented that the purpose, scope and subject matter of the discussed Act shows consistency of relevance for the adoption of the precaution principles for the endangered fauna as the irreversible and serious harm to the endangered fauna is a possibility under the uncertain state of current knowledge (Zander, 2010). This application grant for the precautionary principle in this case implied also assessment inadequacy for the road project.
In this policy and legislative matter the nest case is the ‘Nicholls v Director-General of National Parks and Wildlife’. This time court showed somewhat mixed view in that regard. This verdict has accepted the earlier verdict where the practicality of the precautionary approach is validated but they did not considered that an obligatory in nature (Shepheard and Martin, 2011). The court stated that the principles are the international commitment of Australia that is political in nature. This time the court stated that this international obligation cannot be the base for the court to determine the endangered fauna’s kill or take licence decision merit revision (Shepheard and Martin, 2011). Here the court agreed to evaluate the fauna and environmental impact statement. At the final judgement the court agreed on the licence issue but the condition was that the ongoing assessment or the survey should be updated to DG and that may result in revoking or implement variation in the licence (Moore and Gross, 2012). Therefore this verdict somehow changed the perspective of precautionary principle. A more flexible approach is directed here which is based on the fact or evaluation based decision making and not complete suspension of the decision making under the uncertain situation.
Another important case for the precautionary principle is the ‘Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council’. In the case the Greenpeace Australia Ltd acted as the objector of third party nature. The appeal was made in the court for land and environment against the Singleton Council (Williams and Williams, 2016). The objection was the consent given to the construction process in the Hunter Valley for the ancillary and power station. The argument from the Greenpeace Australia Ltd was that the development would increase ‘greenhouse effect’ and in this context the precautionary principle needs to be applied (lse.ac.uk, 2018). The power company on the other hand provided the counter argument of environmentally beneficial, countervailing effect. In this case also the judgement look for wider considerations and stated that the only greenhouse effect would not be considering factor for the project consent giving but here also a precautionary approach was taken, that is the tree plantation to minimise the greenhouse impact (Williams and Williams, 2016). Therefore the successive court verdict explained the approach and application of the precautionary principle in the domestic law. Up to now these verdicts has provided some base for the future law interpretation on the basis of the precautionary principle for the environmental protection.
The case of ‘Friends of Hinchinbrook Society Inc v Minister for Environment’ is one of such case where the previous two judgements were considered at the time of giving verdict. In this case the ‘World Heritage Properties Conservation Act’ of 1983 was used for the current appeal (Fleming, 1997). The challenge was dine against the decision of commonwealth minister for the dredge channel for marine access and this process would remove and cut mangroves. Here the petitioner argued that the environment minister did not consider the precautionary principle in this decision making process. The applicant tried to make the strong case for the precautionary principle under the purpose, scope and subject matter of the above law. in this process the reference of the ‘Nicholls v Director-General of National Parks and Wildlife’ and ‘Leatch v National Parks and Wildlife Service’ was taken in the federal court (Lyster, and Coonan, 2010). The court observed that the commonsensical principle is to be considered under the lack of scientific information or divided open at the time of deciding. Therefore it can be seen that the case after case hearing provided further explanation and applicability of the precautionary principle for different environment and conservation laws. This development is impacted the sustainability exercise environmentally in the coming years (Lyster and Coonan, 2010).
The implications of the precautionary principle for the sustainable development ecologically provide some more significant verdict in this matter. One of such case is the ‘Development Assessment Committee and Tuna Boat Owners Association v Conservation Council of South Australia’ (McKay, 2010). The ‘development assessment commission’ earlier provided the consent for the Louth Bay based tuna farming. ‘Conservation Council of South Australia’ appealed for the merit review in the ERD court or the ‘Development Court of South Australia’ (McKay, 2010). The burden of proofing was discussed for the reversal in this case at the time of discussion the precautionary principle. The court evaluated the case on two aspects, one is the precautionary principle application and sustainable development ecologically. After considering all the factors the court at its concluding statement refused the consent and upheld the appeals. This is a significant case that cancelled the consent and strengthens the greater sustainable development ecologically. This decision was further challenged by the ‘Tuna Boat Owners Association of SA Inc’ in the ‘Supreme court of south Australia’. The main ground of this reconsideration appeal was that the ERD court committed a error at the time of deciding the sustainable development ecologically (Peel, 2009). Therefore the matter should be handled by the minster concerned. But the Full court at the time of rejecting the submission stated that the as a planning authority ERD court needed to consider the sustainable development ecologically and the ERD court has done right thing by putting onus on the proponent to proof the sustainable development aspect of the consent ecologically (lec.justice.nsw.gov.au, 2006). This verdict further reinforced and strengthens the earlier verdict in this regard. The precautionary principle here closely integrated with the sustainable development ecologically. This is a strong and visible change in the legislative aspect for the sustainable development in Australia.
There were many such cases that cemented the precautionary principle in the sustainable development but one case that provided a highly detailed verdict in this regard that is highly useful for the long term sustainable development. This is the case of ‘Telstra Corporation Limited v Hornsby Shire Council’. The applicant in the “Land and Environment Court’, appealed for the merit review of the ‘base station’ which was given by the ‘Hornsby Shire Council’ (Dolan and Rowley, 2009). The argument was that health and safety of the local resident would be impacted because of this base station. The applicant asked the court to refuse the consent on the basis of the precautionary principle. At the time delivering the verdict the judge provided detail implication of this principle. The verdict stated that the uncertain scientific knowledge and the environmental damage irreversibility would be two main factors for precautionary principle application (Macintosh, 2013). The irreversible environmental damage can be a threat and not a actual occurrence actually happened. The threat must be scientific evidence based. On the other hand the uncertainty would deal with the scope and nature of the threat (lec.justice.nsw.gov.au, 2006). The scientific plausibility for environmental damage must be reasonable. One these bases the preventive measures can be taken without the detailed knowledge of the threat and happening of actual rehabilitee. The preventive anticipation and precautionary standard of zero risk is incorporated. The consequence of risk weighted and proportionality is also applied here. Moreover the judgement stated that the sustainable development ecologically is the package under which the precautionary principle is to be viewed.
All of these legal cases demonstrate the inclusion of the precautionary principle in the greater sustainable development in the Australian legal system. A law takes time and constant interpretation to be effective for any use. The sustainable development needs different considerations under which a precautionary approach would be a significant part (Peel, 2009). The application of the precautionary principle started with the environment sustainability aspect but the latter case showed that the implication also impacting the social developmental factors also.
References
Austlii.edu.au. (1993). DIRECTOR-GENERAL OF NATIONAL PARKS & WILDLIFE SERVICE v. SHOALHAVEN CITY COUNCIL [1993] NSWLEC 191 (23 November 1993). [online] Available at: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/1993/191.html?stem=0&synonyms=0&query=~%20leatch [Accessed 6 Sep. 2018].
Death, C. (2010). Governing sustainable development: Partnerships, protests and power at the world summit. Routledge.
Dolan, M., and Rowley, J. (2009). The precautionary principle in the context of mobile phone and base station radiofrequency exposures. Environmental Health Perspectives, 117(9), 1329.
Fleming, A. (1997). Friends of Hinchinbrook Society Inc v Minister for Environment and Management of World Heritage. ENVIRONMENTAL AND PLANNING LAW JOURNAL, 14, 295-304.
Hoekstra, A. Y., and Wiedmann, T. O. (2014). Humanity’s unsustainable environmental footprint. Science, 344(6188), 1114-1117.
lec.justice.nsw.gov.au. (2006). Ecologically Sustainable Development in the Courts in Australia and Asia. [online] Available at: https://www.lec.justice.nsw.gov.au/Documents/preston_ecologically%20sustainable%20development%20in%20the%20courts%20in%20australia%20and%20asia.pdf [Accessed 6 Sep. 2018].
lse.ac.uk. (2018). Greenpeace Australia Ltd v. Redbank Power Co. (Land and Environment Court of New South Wales, 1994). [online] Available at: https://www.lse.ac.uk/GranthamInstitute/litigation/greenpeace-australia-ltd-v-redbank-power-co-land-and-environment-court-of-new-south-wales-1994/ [Accessed 6 Sep. 2018].
Lyster, R., and Coonan, E. (2010). The Precautionary Principle: A Thrill Ride on the Roller Coaster of Energy and Climate Law.
Macintosh, A. (2013). Coastal climate hazards and urban planning: how planning responses can lead to maladaptation. Mitigation and Adaptation Strategies for Global Change, 18(7), 1035-1055.
McKay, J. (2010). Some Australian Examples of the Integration of, Environmental, Economic and Social Considerations into Decision Making-The Jurisprudence of Facts and Context.
Moore, C. A., and Gross, C. (2012). Great big hairy bees! Regulating the European Bumblebee, Bombus terrestris L. What does it say about the Precautionary Principle?. International Journal of Rural Law and Policy, (1), 1-19.
Peel, J. (2009). Interpretation and application of the precautionary principle: Australia’s contribution. Review of European Community & International Environmental Law, 18(1), 11-25.
Shepheard, M. L., and Martin, P. V. (2011). Using the moot court to trial legislation about land stewardship. Land use policy, 28(2), 371-377.
Williams, P. J., and Williams, A. M. (2016). Sustainability and planning law in Australia: achievements and challenges. International Journal of Law in the Built Environment, 8(3), 226-242.
Zander, J. (2010). The application of the precautionary principle in practice: comparative dimensions. Cambridge University Press.
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