Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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JOSEPH CHUN[*]
The prevailing concept of private land ownership and its associated management rights has been criticised by a number of writers for falling short in accommodating an ethical relationship with the land. In this article, I propose to look at the law and practice relating to the management of public land in Singapore, by which I mean land owned and managed by the State and its agencies. I observe that like private land law, public land law in Singapore empowers but does not oblige the State and its agencies to protect the health of ecological systems. In light of modern developments in ecology and ethics, the ownership and management of land must now take on a more expansive view of community interests. Public land law must also take into account the interdependence between species and land as a biotic community, and protect land from irreparable ecological degradation for short-term economic gain. One way to do this is to introduce procedural requirements that explicitly require land managers to systematically identify and consider the ecological impacts of proposed land management decisions. Ultimately however, public land managers are public servants and they will only internalise the land ethic when the public they serve do the same and expect land managers to do the same. In this regard, the law can empower the public to become more intimately involved in land management. Only by becoming more involved can the public develop a close personal relationship with the land and learn to care for it.
This article begins with a general review of the developments that have taken place in ecological science and environmental ethics in the last century. It is argued that these developments have prompted the realisation that it is self-defeating to view land simply as an economic resource to be manipulated to maximise human welfare without regard for the indirect and cumulative harm to the land’s ecological integrity on which all life, including our own, ultimately depends. It then looks at the law and practice of public land management in Singapore, and observes that the land ethic plays virtually no role therein. The article concludes with suggestions for updating the legal framework for public land management to accommodate and contribute to the development of a more enlightened social ethic towards the land.
Early western conceptions of dominion over land included a duty of stewardship not to harm the land. For example, influential seventeenth century English philosopher John Locke accepted in his Two Treatises of Government the belief that God gave the world and all that was in it to man for his common use.[1] Importantly for Locke however, although the Earth was a gift from God, ‘nothing was made by God for man to spoil or destroy’.[2]
The need for a harmonious relationship between humans and the land is also foundational to many traditional cultures. Ancient cultures primarily conceived of the physical world in an organic way, as each part and species was interconnected with every other part and species. Many indigenous people and traditional societies believe in the spiritual power of nature, and emphasise human participation in its fulfilment.[3] Similarly, many Asian religions and philosophies such as Buddhism, Confucianism, Daoism and Hinduism advocate respect for all life and emphasise union with nature and its cosmic forces.
With advances in the field of modern ecology since the second half of the 20th century, the importance of ecological harmony has begun to take on a more scientific understanding. From an ecological perspective, a parcel of land simply cannot be treated as an entity separable from its surroundings. For example, in the 1960s, English atmospheric scientist James Lovelock observed that the Earth’s biosphere effectively acts as if it were a self-organising system which works in such a way as to keep its systems in some kind of equilibrium that is conducive to life. Individual species have evolved in tandem so that as they pursue their self-interest, their combined interactions tend to have counterbalancing effects on the global environment thereby maintaining optimal conditions favourable to life.[4]
American forester Aldo Leopold, the single most influential figure in the development of a Western ecocentric environmental philosophy, was one of the first people to call for a radical rethinking of ethics in light of the newly developed science of ecology. In his 1949 essay, ‘The Land Ethic’, Leopold described the land ecologically as a biotic pyramid made of several layers.[5] For Leopold, the land was more than mere soil; it was a community of native plants and animals linked together by a flow of energy. While the land is not static and is constantly evolving, evolutionary changes are of a different order from many man-made changes including activities associated with habitat loss and fragmentation; invasion by introduced species, the over-exploitation of living resources; pollution; global climate change and industrial agriculture and forestry. Such man-made changes tended to simplify rather than diversify the biotic community, producing widespread unintended or unforeseen effects.[6]
Leopold argued for an extension of ethics to deal with man’s relations with the land.[7] It is not enough for ethics to deal with the relationships between individuals and the relationship between individuals and society; an ethic to deal with man’s relationship with the land is equally necessary. This involves enlarging the boundary of our community to include the land, so that we see ourselves as only ordinary members and citizens of the land-community rather than as its conquerors or owners. This implies respect for our fellow members and for the community. It also requires that we do not presume to know what makes the community tick, what and who is valuable and what and who is worthless in community life. Leopold eschewed a system of conservation based solely on economic self-interest that leads to the elimination of many ‘uneconomic’ elements in the land-community that are in fact essential to its healthy functioning.
Importantly, Leopold did not see any conflict between our broader human interest and the interest of the land-community. Indeed, it is ultimately very much in our interest as members of the land-community to keep healthy the land of which we are a part. There is nothing wrong with using parts of nature for our benefit so long as the health of the community as a whole is respected. It is important that we stop thinking of land management solely in terms of economic self-interest and only conserve what is convenient, when we can do so without sacrifice. We must also address the ethical and aesthetic questions. Leopold summed up the ethic thus:
quit thinking about decent land-use as solely an economic problem. Examine each question in terms of what is ethically and aesthetically right, as well as what is economically expedient. A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.[8]
As Leopold noted, a land ethic reflects the existence of an ecological conscience, which in turn reflects a conviction of individual responsibility for the health of the land, ie, its capacity for self-renewal.[9] What prevents us from developing an ecological conscience? Leopold suggests a number of obstacles that impede the evolution of a land ethic.[10] Firstly, our education and economic system turns us away from, rather than towards, an intense consciousness of land. Secondly, we perceive land as an adversary. Thirdly, we lack an understanding of ecology. Finally, we mistakenly accept that economics should determine all land-use.
International law has begun to recognise and accept this ethical development towards a greater awareness of the importance of conducting ourselves with proper regard for the biotic community.
Thus, paragraph 3(a) of the Preamble of the World Charter for Nature 1982[11] states
Every form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action.
In the preamble to the Agreement for the Conservation of Nature and Natural Resources 1985,[12] the Member States of the Association of Southeast Asian Nations (ASEAN) of which Singapore is one, also recognised ‘the interdependence of living resources, between them and with other natural resources, within ecosystems of which they are part’. The Parties undertook, inter alia, to base their land use plans as far as possible on the ecological capacity of the land.[13]
In a similar vein, the preamble to the Convention on Biological Diversity 1992,[14] expressed a consciousness of the intrinsic value of biological diversity as well as its importance for evolution and for maintaining the life sustaining systems of the biosphere.[15]
Reflecting the emerging international consensus, the Earth Charter[16] has recently identified an ecocentric ethic as the way forward for humanity. Launched in 2000, the Charter is described by its promoters, the Earth Charter Initiative, as
an authoritative synthesis of values, principles, and aspirations that are widely shared by growing numbers of men and women in all regions of the world … [reflecting] extensive international consultations conducted over a period of many years … [and] based upon contemporary science, international law, and the insights of philosophy and religion.[17]
The preamble of the Charter provides, inter alia, that
[a]s the world becomes increasingly interdependent and fragile, the future at once holds great peril and great promise. To move forward we must recognize that in the midst of a magnificent diversity of cultures and life forms we are one human family and one Earth community with a common destiny. We must join together to bring forth a sustainable global society founded on respect for nature, universal human rights, economic justice, and a culture of peace. Towards this end, it is imperative that we, the peoples of Earth, declare our responsibility to one another, to the greater community of life, and to future generations.[18]
A core principle of the Earth Charter is that ‘… every form of life has value regardless of its worth to human beings’.[19] Following from this core principle, Principle 2 advocates care for the community of life with compassion, understanding and love;[20] and Principle 15 calls for all living beings to be treated with respect and consideration.[21]
Importantly, an ecocentric ethic is not inconsistent with sustainable development, the current dominant paradigm for environmental protection. Principle 1 of the Rio Declaration on Environment and Development 1992[22] declares that
Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.[23]
Even more explicitly, Paragraph 6 of the Johannesburg Declaration on Sustainable Development 2002[24] adopts virtually identical language to that in the preamble of the Earth Charter:
From this Continent, the Cradle of Humanity we declare, through the Plan of Implementation and this Declaration, our responsibility to one another, to the greater community of life and to our children.[25]
An ecocentric ethic has also increasingly been expressed in domestic law. One of the first countries to recognise and embody an environmental ethic in its constitution, Brazil’s Constitution represents a trend towards the integration of an environmental ethic in constitutions.[26] Article 225(1) of the Brazil Constitution requires the government to
preserve and restore essential ecological processes and provide ecological handling of the species and ecosystems …
determine, in all units of the Federation, territorial spaces and components which are to receive special protection, any alteration and suppression only being allowed by means of a law, and any use which adversely affects the integrity of the attributes which justify their protection being forbidden … [and]
protect the fauna and the flora, all practices which jeopardize their ecological function, cause the extinction of species or subject animals to cruelty being forbidden according to the law.
In a similar vein, Article 51A(g) of the Indian Constitution imposes a fundamental duty on every citizen of India ‘to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures’.
New domestic legislation and case law are also emerging all around the world to acknowledge and impose a duty to conserve or even enhance biodiversity. For example, one of the declared statutory purposes of the National Environmental Policy Act of 1969,[27] the cornerstone of United States environmental law, is to ‘encourage productive and enjoyable harmony between man and his environment’.[28]
In New Zealand, the Environment Act 1986 seeks, inter alia, to ensure that in managing the natural and physical resources, full and balanced consideration is taken of the intrinsic values of ecosystems.[29] Under its Resource Management Act 1991, all persons exercising functions and powers under the Act are required to have particular regard, inter alia to the Maori concept of kaitiakitanga, an indigenous concept of guardianship in accordance with Maori customs and traditions in relation to natural and physical resources; the ethic of stewardship; and the intrinsic value of ecosystems.[30]
More recently, in Scotland, the Nature Conservation (Scotland) Act 2004 imposes on every public body and office-holder exercising their functions, a duty to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.[31] Consistently with Article 6 of the Convention on Biological Diversity 1992, the Scottish Ministers are required to publish a biodiversity conservation strategy. Public bodies and office holders must have regard to the Convention and the strategy to the extent that this is consistent with the discharge of their functions. Ministers must also periodically report to Parliament on the implementation of the strategy.[32] At the final stage of the legislative process, the Minister for Environment and Rural and Development, in moving that the Scottish Parliament pass the Nature Conservation (Scotland) Bill, described the bill thus:
[a] key theme of the bill has been an emphasis on people and nature and the recognition that nature conservation and protection of the environment do not happen in a vacuum. We need to reconnect people with the natural world to achieve a sensible, sustainable balance for the future. The bill will make a difference on many levels. It forms part of a coherent larger vision for not only a new system of nature conservation, but a sustainable relationship with our natural environment and the planet on which we live.[33]
Importantly, the law has recognised, as Leopold did, that the ethical consideration of non-humans is not adverse to human welfare. In the 1995 English Court of Appeal case of R v Somerset County Council, ex parte Fewings, the issue was whether a local authority’s decision to ban deer hunting on its land was in accordance with its statutory mandate to manage the land for the ‘benefit, improvement or development of the area as a whole’. The decision was held not to be so because the authority had banned deer hunting on the ground that it was morally repulsive rather than because it was for the benefit of the area. Simon Brown LJ noted, however, that
the concepts of benefit to the area, and public interest and good, invite consideration first of the council’s human community, rather than its wildlife. But the two considerations are not discrete: human well-being for many will depend upon their satisfaction as to animal welfare. That explains much animal legislation and why such activities as bear-baiting and cock-fighting have long since been abolished. It explains too why a spacious zoo provides enjoyment when a cramped one may not, and why bull-fighting is unlikely to catch on here. The examples could be multiplied. Why then should it be thought illogical and thus impermissible for councillors to have regard to their sentiments as representatives of the local community in deciding whether that community’s land - the common - should be hunted?
Reflecting on this enlightened shift towards an ecocentric outlook, many legal academic writers have correctly pointed out that the land is too important to be left to the whims of land owners motivated by short term self-interest.
Law professor Eric Freyfogle, for example, has detailed some of the shortcomings of American land law:[34]
Property law assumes that people are distinct from the land ... Humans possess moral value; the land does not. Harm to humans deserves redress; harm to the land does not …
Property law assumes that humans can draw lines on the land and thereby divide it meaningfully into discrete pieces … Nature does not observe our lines, except in the rare cases where we let nature set them for us … Lines drawn on the land usually lead to separate land management regimes.
The most fundamental flaw of property law … is the law's inability to see how land parcels differ...
[P]roperty law places too much weight on market value ... When harm does not cost an owner money in the market, the law turns a blind eye. When money is paid, we think all is made right, as if displaced animals could draw on the bank for food and shelter ... [35]
A number of law academics have also noted that the prevailing Anglo-American concept of land ownership may no longer adequately capture the social and ecological importance of land, and may need to be replaced with the concept of stewardship.
Arguing for systemic change away from the current method of making land use decisions that are dominated by an inappropriate economic paradigm entailing broad privileges and few obligations, James Karp advocated for land ownership to include a duty of land stewardship entailing a shared community ethic of ecocentrism in which humans are integrated with their natural environment; and a reordering of the rights of the individual and the rights of the community regarding land. [36]
Describing environmental ethics as ‘an understanding that in an ecosystem every action taken has consequences’, Robert Goldstein proposed the inclusion of ‘green wood’ in the ‘bundle of rights’ metaphor often associated with property rights. The green wood is the ‘one stick that is dependent on the individual nature of the specific real property, and is therefore planted firmly in the ground’. It represents ‘the obligation that must be applied with conscience based on our understanding of the importance of land beyond that of the inanimate sticks in the bundle’ which have no ties to the ground.[37] In legal terms,
[l]andowners have a duty to maintain the environmental context of the land in relation to the ecosystem to which it belongs. Environmental context is defined using the science of ecology. Green wood creates a rebuttable presumption that action by a landowner that will affect the environmental context is prohibited.[38]
More radically, William Lucy and Catherine Mitchell have advocated the replacement of the concept of private property with that of stewardship that recognises the importance of the availability of land for the satisfaction of a number of basic human needs, and subordinates the pursuit of individual economic interests to alternative land uses that satisfy social and ecological criteria.[39]
The ‘bundle of rights’ metaphor for property has also been criticised for its incompatibility with the ecology of land. Craig Arnold has argued that the metaphor should be replaced with a ‘web of interests’ metaphor, at the centre of which is the object. Such a metaphor would promote a conscious examination of the characteristics of the property and consequently the nature of the person-thing relationships, in addition to the people-people relationships in respect of the object, in applying and developing property law.[40] Myrl Duncan has also criticised the metaphor for being fragmented and abstracted, individualistic and immutable, and therefore anti-ecological. Land should be reconceived as a community-based resource subject to the overriding public interest, and the bundle of sticks metaphor expanded to include a public cord that binds the bundle and secures the sticks making up the bundle. The cord is loosened or tightened accordingly to reflect changes in societal values.[41]
Is the land ethic necessary or appropriate for Singapore? I submit it is. Local philosopher and nature conservationist Hua-Chew Ho has argued for a similar ethic to be emphasised in Singapore.[42] In considering the appropriate value orientation towards nature preservation in Singapore that would strike a responsive chord with the psyche of its people, Ho took into consideration a number of factors, including the national preoccupation with economic growth, the materialistic and practical attitude of its people towards the world and life, the general perception amongst the people that there is land scarcity in Singapore, the absence of areas of pristine wilderness unadulterated by human intervention and the tendency in Singapore to conflate nature with an orderly green landscape with its uniformity of mostly exotic tree species.[43] At the same time, he also observed a ‘blooming of interest in nature’, and a ‘growing groundswell of committed public support for nature preservation never seen before in Singapore’.[44] Furthermore, pressure to develop land to meet the major economic needs of the earlier decades of Singapore’s independence, such as housing and employment, was subsiding, and the emphasis in land use had now shifted from standard of living issues to quality of life issues.[45]
Taking into account these local economic, ecological, social and cultural conditions, Ho concluded that the values that ought to be emphasised in Singapore are those that are compatible with the notion of treating nature as a friend that provides companionship, solace, pleasure, and stimulation. These values entail respecting nature’s integrity with respect and preserving its individuality[46] and include appreciating nature’s beauty; joy and delight in seeing and learning about wild plants and animals; appreciating nature as a place for therapeutic escape; and appreciating nature as a source of a deep and binding sense of place.[47] On the other hand, a happy and viable friendship cannot arise from values that permit the abuse and pillaging of that friend.[48]
In reaching his conclusion, Ho also explained why other value orientations may be inadequate or inappropriate to sustain nature conservation in Singapore. In particular, he argued that unlike some other countries, the natural areas in urbanised Singapore occur on too small a scale to make any significant contribution towards meeting the economic or life supporting needs of the people. As such, it is difficult to justify nature preservation in Singapore as a pre-requisite essential to sustainable development.[49]
With the State and its statutory boards owning approximately 90% of the land in Singapore,[50] private property rights play a correspondingly smaller role in terms of land management. As such, one might prima facie conclude that the arguments for a land ethic amongst private land owners are practically irrelevant in Singapore. Indeed, land in Singapore has always been viewed, first and foremost, as a community resource and its judicious use has long been recognised as being vital to its survival. Consequently, the State maintains a tight grip over private land use and management. This tight control is achieved, aside from its outright exercise of land ownership rights, inter alia, through a mix of economic incentives (and disincentives), land use planning and development control and outright compulsory acquisition.
As we shall see below however, State ownership and public management of land is no guarantee that land will in fact be managed in an ecologically harmonious manner in the face of intense political and socio-economic pressures to manage it otherwise. Not only are public land managers in Singapore generally under no legal obligation to have regard for ecological considerations in the discharge of their functions, it seems that at least some of them do not even have a legal power to do so.
Singapore is a city-state with a population of 4.3 million and one of the highest standards of living in Asia. With only about 699 square kilometres of land and one of the highest population densities in the world,[51] the pressure to develop land to meet all manner of socio-economic needs is enormous. In the circumstances, Singapore has done remarkably well in terms of keeping itself ‘clean and green’. At the outset of Singapore’s industrialisation in 1967, the government introduced a programme to transform Singapore into a garden city.[52] Its reason for doing so was two-fold. Firstly, it was believed that the well-kept trees could help convince potential foreign investors that Singapore was an efficient and effective city. Secondly, it was thought that the greenery of nature helped to soften the harshness of living in a densely populated city, and was uplifting for the human spirit.[53]
The initial aim of the garden city programme was simply to plant as much lush greenery as possible so as to improve the quality of the environment.[54] To achieve this quickly, fast growing trees, whether indigenous or exotic, were selected for planting to establish a green mantle for the island. Once this had been achieved, flowering shrubs and trees and fruit trees were planted to avoid the monotony of continuous island-wide green vegetation and add to brighten the colours of the landscape. The greening did not just stop at the ground level, but also took place in high-rise buildings to make Singapore a garden city on all levels.[55]
Today, Singapore has taken its garden city concept a notch higher with its ‘city in a garden’ plan. This entails turning green spaces into a seamless network of gardens and transforming parks from passive green areas to places teeming with cultural activities and performances, nature programmes and tours, and even vibrant night life.[56] More recently, to strengthen Singapore’s garden city image, a second botanical garden has been planned for the Marina Bay area. Unlike the first which focuses on botanical collections and research, the second botanical garden will focus on mass floral displays and ‘creative plant-based edutainment’.[57]
The garden city programme has largely been successful in covering Singapore with lush greenery; so successful in fact that Singapore is exporting its expertise to other cities.[58] The role of law in achieving this success cannot be underestimated. Tracing the legal development underlying Singapore’s greenery, law professor Kheng-Lian Koh has noted that the legal framework has helped to guide planners in mapping Singapore as a garden city and to establish the institutions necessary to carry out and manage the programme of developing a garden city, such as the Parks and Recreation Department, and the National Parks Board. Without a proper legal framework, the implementation of the garden city concept might not have been so successful.[59]
It appears however, that the garden city concept as implemented in Singapore has been more successful in ‘taming and manicuring’[60] the urban environment with greenery, but less so when it comes to holistically protecting or enhancing the ecological integrity of the land.[61] In the course of the last century, much of the physical landscape of the island has been irreversibly altered to meet the needs of its human residents. Land has been reclaimed at the expense of coastal ecosystems, swamps have been filled, hills have been levelled, reservoirs and lakes have been created, and drainage patterns have been altered.[62] It has been estimated that between 1819, when the British first established a presence in Singapore, and 1990, more than 95% of the island state’s original vegetation cover has been entirely cleared.[63] This includes 99.8% of the original forest cover[64] and 99% of coastal mangroves and mudflats.[65]
Today, more than half the main island is urbanised, and most of the smaller offshore islands have been developed for industry, recreation, and even a landfill. The urbanised areas are ecologically impoverished. The density of high-rise buildings in built-up areas has affected the microclimate by raising temperatures by as much as seven degrees Celsius.[66] The soil condition has been impaired with most of the original topsoil having been removed, buried or incorporated with construction waste, and much of the soil has been severely compacted. Large areas have been concreted over, and run-off is channelled directly into the drainage system without passing through the soil. Today, soil in urban Singapore is characterised by poor fertility and high acidity, soil compaction, poor aeration, and soil erosion.[67] And while Singapore aptly describes itself as a ‘garden city’ with its widespread systematic planting of flora in urban areas, such active landscaping may potentially have adverse consequences on the indigenous biotic community particularly in view of the large number of exotic species of flora introduced.[68] It is estimated that some 20% to 60% of the known flora has become extinct, with many of the remaining ecologically non-viable species expected to follow in the years to come.[69] Overall loss of biodiversity (flora and fauna) may be as high as 73%,[70] and with 77% of the island’s species considered ‘threatened’, the future prospects for Singapore’s surviving biodiversity is seemingly bleak.[71]
It has been noted that while Singapore is conceivably near the bottom of the league table for conservation, it may be close to the top of the biodiversity league.[72] According to the National Parks Board, Singapore probably has the world’s highest biodiversity density – about 2,000 species of flora and fauna can be found in some 2,800 ha of nature reserve.[73] In a ten-year study of a two-hectare plot within the Bukit Timah Nature Reserve, at least 320 species of trees were found to have existed on site for the last 5,000 years.[74] Indeed, British conservationist David Bellamy once noted that there are more tree species in half the space of this plot than there are in the whole of North America.[75] Singapore also has as many types of native flowering plants as New Zealand, which is more than 400 times larger than Singapore.[76] This high density of biodiversity makes the task of nature conservation easier since conservation efforts can be concentrated in a small area. At the same time, it confers a heavy responsibility since any encroachment onto nature reserves is likely to have a significant ecological impact.
The management of public land is generally subject to the same environmental laws that apply to privately owned land. While the ecological value of the land receives some protection from the torts of private nuisance and the rule in Rylands v Fletcher,[77] these torts have traditionally focused on the balancing of the conflicting land use claims of landowners, so that improvements in environmental quality for the general benefit of a wider community have only been incidental. Indeed, as the case of Leaky v National Trust[78] shows, a landowner can be liable for failing to abate a nuisance caused by a natural feature of his land. Although the courts could, by expanding the scope of actionable land damage to include ecological damage per se, provide primary protection to the biotic community as a whole, they have been reluctant to sanction this expansion.[79] Instead, the judiciary has suggested it is the role of Parliament to institute such changes through legislative amendments. This is perhaps understandable, considering that the purpose of these torts has always been to vindicate private rather than communal rights.
Various forms of air, water, land and noise pollution are regulated under the Environmental Pollution Control Act.[80] Under the Environmental Public Health Act, the owner or occupier may be required to abate nuisances of a public nature, including the keeping of their premises in such a state as not to be injurious or dangerous to health.[81] Again, while the ecological integrity of land is partially or incidentally protected by such legislation, the primary objects of such legislation are environmental pollution[82] and public health respectively.
Direct protection of selected members of the biotic community is conferred under the Wild Animals and Bird Act.[83] It is an offence for owners to kill, take, or keep most species of wild animals and birds found on their land, but not if the wild animal or bird is found to be damaging or destroying the crops or any other property thereon.[84] Furthermore, although direct harm to wildlife is regulated, indirect harm arising from the degradation of their habitats is not.
The management of flora is generally unregulated, but exceptionally, large trees on vacant land or designated tree conservation areas which have a girth exceeding one metre are protected. Tree conservation areas are designated for their amenity value,[85] and even then only trees with a large girth are protected in such areas. Any person felling or cutting such trees, or wilfully causing their death without the approval of the Commissioner of Parks and Recreation may be punished under the Parks and Trees Act 2005 with a fine.[86] A tree conservation notice may also be issued to the occupier of land on which such trees are located to maintain or conserve such trees.[87]
A similar protection is conferred on trees and plants generally in designated heritage road green buffers.[88] The Minister may gazette any area in Singapore (other than a national park or nature reserve) as a heritage road green buffer if it appears expedient to him or her to conserve the flora or vegetation in that area as important elements of the surrounding streetscape or landscape. It is the function of the National Parks Board to manage and maintain all heritage road green buffers. The cutting or damaging of a tree or plant within a heritage road green buffer without the approval of the Commissioner of Parks and Trees is prohibited. Approval from the Commissioner is also required before any person may interfere with any heritage road green buffer. Significantly, the criteria for protection under these provisions is not so much the value of the trees or vegetation as such, but their contribution to the surrounding streetscape or landscape.[89] According to the then Second Minister for National Development at the Second Reading of the Parks and Trees Bill[90] in Parliament, roadside greenery,
especially tall ‘green walls’ of mature trees and multi-layered vegetation lining roads merit protection because it ‘softens the hard effect of large physical structures and buildings to create a garden-like ambience in our city’.[91]
The Planning Act[92] is one piece of legislation which could conceivably (but not necessarily) be used to protect the land from ecological harm. The Act provides for the creation and periodic review of the Master Plan for land use for Singapore,[93] but does not lay down any criteria or considerations that must be included in any review of or amendment to the Plan. Neither is there any requirement for a strategic environmental assessment to be carried out in conjunction with the creation or review of the Master Plan. While ecological considerations could in theory be taken into account at this review stage, the extent to which such considerations are in practice actually taken on board is not entirely clear even though as a matter of administrative practice the National Parks Board[94] participates in the review process and selected environmental non-governmental groups are consulted. In this regard, researchers suggest, on the basis of the planning decisions actually taken, that considerations of biodiversity and ecology do not rank highly in the planning process, and are regarded as a poor second to economic and social considerations.[95]
The development of land is also regulated under the Planning Act to make sure it is compatible with the perceived public interest, as determined under the land use planning regime of the Planning Act. Section 12 prohibits any ‘development’ of land[96] without the prior written permission of the Chief Executive Officer of the Urban Redevelopment Authority. Applications for written planning permission are generally considered with reference to the Master Plan insofar as it is relevant,[97] but once again, there is an absence of any specific requirements to take ecological considerations into account, although the National Parks Board is, as a matter of administrative practice, consulted if the proposed development takes place in or near nature areas.[98] The Act also does not regulate potentially ecologically harmful activities that do not fall within the definition of ‘development’.
While the ecological value of land does not receive any general environmental legislation, some protection is conferred on specific sites identified as being particularly rich in biodiversity. There are currently 18 sites comprising up to five percent of Singapore’s total land area administratively designated as ‘nature areas’.[99] Nature areas are owned by the State and managed by the National Parks Board, and are set out in the Urban Redevelopment Authority’s Special and Detailed Control Plan, a non-statutory plan with special guidelines annexed under their statutory Republic of Singapore Master Plan 2003.[100] Designation as a nature area carries no legal significance, but administratively, the Board must be consulted on any development proposal in or near these areas, and an ecological study may also be required. The declared intention is to keep these nature areas ‘for as long as possible’.[101]
Designation as a nature area is discretionary, and it is clear that ecological merit is not the sole criterion. For example, notwithstanding the acknowledgement by the State and its agencies of the rich biological diversity that can be found in Tanjung Chek Jawa, an intertidal flat on the north-eastern coast of Pulau Ubin, an off-shore island,[102] there are no plans to designate it as a nature area. Even though the government does not foresee any need for the area to be developed, it prefers to keep its options open[103] by zoning it as a reserve site on the Master Plan, ie, a site whose specific use has yet to be determined.[104] The site is therefore now left alone to flourish but is vulnerable to future development.
Included in the nature areas are certain sites that are designated national parks or nature reserves. These designations carry legal significance. Under the Parks and Trees Act 2005,[105] national parks and nature reserves may be set aside for all or any of the following purposes:
(a) the propagation, protection and conservation of the trees, plants, animals and other organisms of Singapore, whether indigenous or otherwise;
(b) the study, research and preservation of objects and places of aesthetic, historical or scientific interest;
(c) the study, research and dissemination of knowledge in botany, horticulture, biotechnology, or natural and local history; and
(d) recreational and educational use by the public.[106]
Currently, two national parks and four nature reserves are designated under the Act. The Schedule marking out the national parks and nature reserves may only be amended by the Minister, after consultation with the National Parks Board. Any order to amend the Schedule must be presented to Parliament as soon as possible after publication in the Gazette.[107] The Act is conspicuously silent on the criteria to be taken into account when deciding whether or not to amend the Schedule, and environmental impact assessments are not legally required prior to any amendment.
Certain activities that harm the flora and fauna within national parks and nature reserves are prohibited without the approval of the Commissioner of Parks and Recreation.[108] Before the Commissioner gives his approval, he will, subject to any general or special directions of the Minister,[109] presumably have to take into account the many purposes for which National Parks and Nature Reserves are designated, of which ‘the propagation, protection and conservation of the trees, plants, animals and other organisms of Singapore’ is but one among many potentially incompatible purposes.
The above review of the legal framework shows that while some regulations are in place to protect public land from ecological harm, these are not comprehensive, and public land owners and managers still possess considerable discretion to cause or permit significant ecological harm to the land under their charge. Over the years, there have been numerous instances of nature areas, including nature reserves, being sacrificed for developments, including a golf course, a road, a prison detention centre for illegal immigrants and drug addicts, an aqua-culture farm,[110] and reclamation,[111] a land-fill,[112] and a water reservoir.[113] Some of these encroachments have arguably been made in less than inevitable circumstances.[114]
For example, the integrity of the nature reserves received a major setback in 1985, when a 50-metre wide swathe was cut through Singapore’s sole remaining primary rainforest to build an expressway, thereby isolating the Bukit Timah nature reserve from the Central Catchment nature reserve.[115] Instead of one unbroken stretch of forest, there are now six severely fragmented and thinning forest islands separated by lakes, roads and golf courses.[116] A recent suggestion to encase the expressway separating two nature reserves in a concrete tunnel box so that the two reserves could be joined as one has been rejected by the Land Transport Authority, the statutory board charged with the function of planning, designing, constructing, managing and maintaining roads in Singapore,[117] on the grounds that it is not cost effective.[118]
Another controversial development is the proposed construction of a road through the 36-hectare Khatib Bongsu nature area. The Urban Redevelopment Authority announced in 1996 that it planned to develop one-third of the wetland area, home to about 10,000 migratory birds, and proposed ‘high-capacity, high-speed road’ passing straight through rather than going around it.[119] As late as 1993, the Authority was still publicly planning for the proposed road to skirt the nature area, and to leave the entire site intact. Three years later, the Authority decided to re-route, arguing that a straight road would ‘achieve a better alignment and improve the efficiency of traffic flow’, and allow the land to be used more efficiently, as there would be regular-shaped and larger parcels available on the site for the future development of 2,000 new flats. Such is the ecological value of this site that when previously arguing for the inclusion of the site as a nature area in 1993, the Nature Society (Singapore), a non-governmental environmental group expressed the view that
Singapore is not forthcoming and seriously committed to nature conservation and the principle of biodiversity if important places such as…Khatib Bongsu are left out of the category of ‘Nature Areas’.[120]
The government is also not averse to building golf courses in nature reserves. The then Minister for Trade and Industry reportedly expressed the view in 1992 that even though there were alternative sites for a golf course, if there was an urgent need for the site, and it made sense, a golf course could be built in a nature reserve.[121] Indeed, such a proposal was mooted at the time by the Public Utilities Board, the statutory board charged, inter alia, with maintaining water catchment areas and reservoirs.[122] The Board ‘looked into the idea’ of developing an 18-hole 120-hectare golf course on the northern banks of the Lower Peirce Reservoir in the Central Catchment nature reserve.[123] A consultant team was commissioned to conduct an independent study of the environmental impact of the project. Understanding that the study would not be open to public scrutiny, the Nature Society decided to concurrently conduct and publish its own environmental impact assessment.[124] The consultants of the internal PUB-commissioned study recommended a redesign of the course but concluded that it was feasible to construct the course without undue adverse environmental impact. The Nature Society’s published study on the other hand, found, inter alia, that the project would lead to a loss of advanced secondary forest, loss of some of the area’s 485 species of animals and 163 species of plants, and threaten the quality of water in the catchment area. It recommended that either an alternative site be found for the proposed project; or the project be abandoned altogether. The project eventually did not proceed.[125]
The official assertion of an absence of ecologically less damaging alternatives to a proposed development has also not always been accepted at face value in the absence of an opportunity for the public to participate in the search for alternatives. In 2001 for example, it was publicly announced for the first time that five gigantic storage tanks with a combined capacity of 318,000 cubic metres would be built on 11 hectares of the Central Catchment nature reserve.[126] The National Parks Board publicly endorsed the siting of the tanks in the nature reserve, noting that this was a ‘project of national importance’ in water-scarce Singapore.[127] Having previously conducted an ‘exhaustive four-year search’, it declared that it was satisfied that there was no suitable site outside the nature reserves for the tanks.[128] Furthermore, in its view, the impact was minimal as aerial photographs and surveys showed that the selected site had previously been cultivated and was covered with ferns. Steps would also be taken to minimise the environmental impact by moving some of the larger trees and the topsoil to other areas.[129] The announcement was presented as a fait accompli; the public was not even informed of the plans during the four-year search for alternative sites let alone given an opportunity to participate in the search or to scrutinise the findings of the search. In the circumstances, it is understandable that some members of the public remained sceptical about the inevitability of locating the tanks in the nature reserve.[130]
More recently, part of the Kranji Reservoir Marshes nature area has had to make way for Singapore’s 20th full-range golf course, Kranji Sanctuary Course.[131] The nature area provides sanctuary for freshwater wetland-cum-grassland birdlife. Even prior to any environmental impact assessment, the site had been leased to the National Service Resort and Country Club by a statutory board with a view that it would be used as a golf course. Academics commissioned by the Club to conduct an environmental study subsequent to the grant of the lease of the land concluded however that the golf course was not being built at the expense of Singapore’s wilderness because the vegetation was not pristine and was comprised of mainly secondary re-growth, and the affected species of flora and fauna were commonly found in Singapore.[132] Once again, while the conclusions from the study were shared with the public, the study itself was not. According to the Nature Society, the construction of the golf course filled in what was once a freshwater marshland, and destroyed 80 percent of the habitat there, including a feeding ground for the birds in the marshland and the nearby Sungei Buloh nature reserve. There had been substantial decline in wetland and grassland species of birds, and only 34 percent of the bird species that had been found prior to the construction of the golf course remained.[133]
The areas surrounding nature areas and nature reserves have not been spared either. For example, land bordering the Central Catchment nature reserve is leased out to the Singapore Island Country Club, and as part of the maintenance of the golf club’s premises, vegetation on several plots of such land has been cleared over the years, with the permission of the landlord, the Public Utilities Board. The Bukit Timah nature reserve is bounded by a military rifle range in the east and choked with fumes from traffic along busy roads. In addition, as many as 20,000 private flats are slated to replace an industrial strip of factories along one of its borders. Medium-rise private housing developments have been built as close as 100 metres away from the perimeter of the nature reserve, while low-rise developments are as close as 50 metres away. Ecological impacts associated with these developments range from the pounding noise from piling works during construction scaring away the birds, to the concentration of completed concrete buildings raising the temperature in the area.[134] As the housing projects are being built on sites used for factories, and therefore considered to be an improvement of the physical environment in the locality, an environmental impact assessment has been deemed unnecessary.[135]
In 2003, a fence was erected around the northern coast of Pulau Ubin, an island nature area to deter illegal immigrants entering Singapore by sea. Responding to concern that the feeding patterns and the movement of wildlife including animals such as otters and dugongs, which move between land and sea, could be affected, the police assured the public that the potential impact of the fence on the marine environment had been taken into consideration. Apparently, it had commissioned an internal environmental impact assessment which showed ‘no negative impact at the final sites chosen’. Once again this study was not made available to the public.[136]
The land ethic does not require that all land everywhere be preserved all the time. What it does require however, is that the land be respected as worthy of protection in its own right and the ecological concerns be given due consideration in land management decisions, and the ecological integrity of the land is harmed only in circumstances of extreme necessity. In the absence of a legal duty of ecological stewardship, and without a land ethic that respects the land as a biotic community, land is little more than a resource to be expediently drawn down to meet our insatiable needs and wants.
Despite assurances by the government that it is committed to nature conservation,[137] numerous developments in and around nature areas and nature reserves, sometimes unconvincingly justified by reference to land-scarcity and pressing socio-economic needs, make it difficult for these assurances to be accepted at face value. While it is true that there have been instances of development yielding to nature conservation,[138] the track record of our public land management suggests that the state and its agencies have yet to internalise the land ethic. It should thus be a cause for concern that ecologically sensitive land can, when deemed necessary by the State and its agencies, be cut up and made available for private housing, expressways, and golf courses, with so little legal and administrative requirements to account for the ‘integrity, stability, and beauty’ of the land. As noted by urban studies researcher Giok-Ling Ooi,
[t]he destruction of natural habitats and life species other than humans has to be of concern in the effort that is being seen at promoting developmental paths that are more sustainable. With the advance in the development of the built environment and the rapidity of the rate at which nature has had to give way to urban growth, the concern would be with the long-term perspective on relations between nature and society in Singapore.[139]
Developing a land ethic will not be easy. As Leopold observed,
[a]n ethic, ecologically, is a limitation on freedom of action in the struggle for existence…All ethics so far evolved rest upon a single premise: that the individual is a member of a community of interdependent parts. His instincts prompt him to compete for his place in that community, but his ethics prompt him also to co-operate (perhaps in order that there may be a places to compete for).[140]
And a land ethic certainly cannot be legislated overnight. As Leopold explained,
[o]bligations have no meaning without conscience, and the problem we face is the extension of the social conscience from people to land. No important change in ethics was ever accomplished without an internal change in our intellectual emphasis, loyalties, affections, and convictions.[141]
It is submitted however that the law has a contribution to make towards the development of a land ethic in public land management. In the particular context of Singapore, one must begin by noting law professor Alan Tan’s observation that,
the relative inadequacy of nature conservation laws in Singapore has less to do with factors typical in other countries such as the voracious appetite of unscrupulous developers or administrative deadlock but more with the belief that land scarcity demands nature’s ultimate sacrifice.[142]
Equally pertinent is Ooi’s conclusion that the State has had a ‘flexible interpretation of the legislation for nature protection’ and has been less than committed to the legislation in its single-minded focus on economic growth, resulting in the maximum possible exploitation of land resources to develop the supporting infrastructure for such growth.[143]
It is submitted that in order for the land ethic to be internalised in public land management, the law can and should, as a start, procedurally constrain the public land manager’s discretion to determine land use on purely economic terms as it deems fit. This however, does not guarantee any particular substantive outcome. Ultimately, these managers are public servants charged with serving the public interest, and they will only internalise the land ethic when the society they serve adopts the ethic and expects its public servants to do the same. For this to happen, the public needs to get closer to and not further away from the land and land management. Only by becoming more intimately involved with the land and its use will social learning and awareness have a chance to develop and the public have an opportunity to learn to care for the land. The law can thus play an important role in facilitating the development of a social ecological conscience for land stewardship by empowering the citizenry to participate in land management, both passively, in the form of access to environmental information; and actively, in the form of public deliberation.
With the arguable exception of the National Parks Boards,[144] public land managers currently have no duty of ecological stewardship towards the land under their charge. Duty aside, it is not even clear that managers charged with specific statutory functions may take into consideration the ecological integrity or biodiversity of the land placed unless these are consistent with their prescribed functions.
For example, the Singapore Land Authority[145] was established under the Singapore Land Authority Act,[146] inter alia ‘to optimise land use’[147] and ‘to act as an agent of the Government in…the administration and management of all State lands and buildings thereon in accordance with…law’.[148] It is explicitly required, in the carrying out of its functions to:
(a) have regard to efficiency and economy and to the social, industrial, commercial and economic needs of Singapore; and
(b) as far as practicable, promote, develop and provide facilities or services that facilitate or are necessary for land planning, land infrastructure development and maintenance and the economic growth in Singapore.[149]
This clearly pro-development Act is conspicuously silent about whether the Authority ought to or even may be permitted to take ecological considerations into account in the discharge of its functions.
It is clearly inadequate to leave at best one State agency, the National Parks Board, to be explicitly charged with a duty of ecological stewardship when public land is in fact subject to the purview of different State agencies, some of which are charged to carry out economic or developmental functions seemingly without any duty to have any regard for the ecological context of the land. In order for the land ethic to be properly integrated in public land management, every public land manager must be subject to an overriding legal duty to take into consideration the ecological impacts in the discharge of their functions. This can take the form of a constitutional duty such as that found in the Brazilian Constitution; or a statutory duty such as that provided for in the Scottish Nature Conservation (Scotland) Act 2004, described above.
As part of the ethical duty to maintain or enhance the biodiversity, land with exceptionally rich biodiversity needs to be identified and conferred stricter protection against ecological harm. Currently, the designation and dedication of such land for statutory protection is a matter entirely at the discretion of the State. Aside from mandatory requirements for strategic environmental assessments and environmental impact assessments, discussed below, the ecological quality of decision-making could also be improved with the inclusion of a mandatory requirement for public participation. Likewise, plans to strip nature reserves of their designation should also include public participation. As mentioned earlier, including the public in land management decisions such as these will provide the opportunity to know the land more intimately and develop a close and personal relationship with the land.
Such provisions already exist in Australia, where the Environment Protection and Biodiversity Conservation Act 1999 provides for the identification of threatened native species and ecological communities;[150] the development of recovery plans for listed species and ecological communities; and where appropriate, the recognition of key threatening processes and the reduction of these processes through threat abatement plans.
Public participation features significantly in the identification of threatened species and ecological communities. In particular, s 191 allows any person to nominate threatened species and ecological communities for listing. Nominations are assessed by the Threatened Species Scientific Committee during which time public comment on the nomination is also formally invited. At the end of the assessment, the Committee’s advice on the nominated species or ecological community’s eligibility for listing is submitted to the Minister for the Environment and Heritage for his or her final decision on whether or not to list the species or ecological community. The Minister must then notify the nominator of the site of his or her decision, and if the nomination is unsuccessful, the reasons for the decision. Any decision by the Minister to amend the lists of threatened species or ecological communities can only take place after the advice of the Committee has been obtained and considered.[151] Only matters that relate to the survival of the species or ecological community may be taken into consideration in the Committee’s advice;[152] and in the Minister’s decision whether or not to amend the list.[153] Amendments to the lists must be gazetted and presented to Parliament together with a statement of the reasons for the amendment.[154]
Once a threatened species or ecological community is listed, the Minister must prepare a recovery plan, which may entail identifying and including in a register, habitats critical to the survival of the listed specie or ecological community.[155] The public must be formally invited to comment on the recovery plan and the Minister must consider all comments received. The Minister is also required to prepare inventories of listed threatened species and threatened ecological communities on Commonwealth land,[156] and take reasonable steps to keep these inventories in an updated form.[157] A proposal for any activity likely to have a significant impact on a vulnerable or endangered species or endangered ecological community must generally be subject to some form of environmental assessment (and public comment) before it can be considered for approval by the Environment Minister.[158] A Commonwealth agency that wants to sell land that contains an identified critical habitat must also ensure that the sale contract includes a covenant to protect the critical habitat and take reasonable steps to ensure that the covenant binds successors in title.[159]
Environmental impact assessments are a major tool for ensuring that ecological considerations are taken into account of in land use decisions. Although not necessarily guaranteeing any ecologically favourable outcome, environmental impact assessments are now a mandatory requirement in many jurisdictions. These are public processes initiated by a permit request or by the legislative process. Typically, an environmental impact assessment would necessarily involve the screening of projects for assessment; scoping of potential impacts for assessment; predicting and identifying the likely environmental impacts of the project; identifying mitigation measures; deciding whether or not to proceed with the project; and if so, monitoring the developmental activities so that unpredicted measures and failed mitigation measures can be addressed promptly.[160]
The value of an environmental impact assessment in promoting a land ethic has been recognised by a number of writers.[161] Its value as a decision-making tool has also been recognised in a number of international and domestic legal instruments. For example, Principle 17 of the Rio Declaration on Environment and Development 1992 provides:
Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
As a party to the Convention on Biological Biodiversity 1992, Singapore is also required by Article (1)(a), as far as possible and as appropriate, to
introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures.
The value of environmental impact assessments has also long been recognised by ASEAN. Article 14 of the ASEAN Agreement on the Conservation of Nature and Natural Resources 1985,[162] which has yet to come into force, provides
The Contracting Parties undertake that proposals for any activity which may significantly affect the natural environment shall as far as possible be subjected to an assessment of their consequences before they are adopted, and they shall take into consideration the results of this assessment in their decision-making process.
There are no mandatory requirements for environmental impact assessments in Singapore; the closest equivalent can be found in s 36 of the Environmental Pollution Control Act.[163] Under this provision, studies on ‘environmental pollution control and related matters’ may be required from any person intending to carry out any activity that, in the opinion of the Director-General of Environmental Protection, is likely to cause substantial pollution of the environment or increase the level of such pollution.[164] Clearly, the provision is not intended to cover non-substantially polluting activities that may potentially be ecologically detrimental, eg, golf course developments. Even when undertaken, environmental impact assessments are usually internal and do not require public input and are not made available for public comment.[165] Furthermore, the practice seems to be to commission an environmental assessment only after a site has already been identified for development. Thus, an environmental assessment only serves to consider how to mitigate adverse environmental impacts.[166] No assessment is done in relation to the alternatives to the proposed development, or alternatives to the selected site; these are treated as givens.
The government has consistently rejected calls to introduce environmental impact assessment legislation, and this has been criticised by a number of writers,[167] and even in Parliament.[168] It appears that this is not so much a rejection of the merits of the assessment per se as a rejection of the need to formalise the requirements and provide for public participation as is usually required in such legislation. In the government’s opinion, it has managed the process of balancing the twin goals of meeting human needs and nature conservation well, and formalising environmental impact assessment and institutionalising public consultation would lead to ‘more dialogue and more disagreements’, rather than a harmonisation of both goals.[169]
However, such a justification is no longer tenable. Aside from the invaluable capacity building opportunities that follow from greater public involvement in land management decisions, the positive contribution to the quality of environmental impact assessments from public input has long been recognised in international law and many domestic jurisdictions.
There are many examples of environmental impact assessment legislation around the world. The European Union’s Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11 of 3 March 1997 and 2003/35 of 26 May 2003 is an example of a legal framework for environmental impact assessments. Article 2 of the Directive requires Member States to adopt all measures necessary to ensure that projects likely to have significant effects on the environment are made subject to a requirement for development consent and an environmental assessment with regard to their effects. The environmental impact assessment must identify, describe and assess in an appropriate manner the direct and indirect effects of the project, inter alia on population, fauna, flora, soil, water, air, climatic factors, and the inter-relationship between these factors.[170] In acknowledgement of the importance of public participation in environmental impact assessments, the Directive has been amended to give effect to the EU’s obligations under the United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998 (‘Aarhus Convention’). Thus, the Directive now requires the public to be notified, inter alia, of the application for development consent; the fact that it is subject to environmental assessment; an indication of the nature of relevant information gathered; details of how and when the relevant information may be sought or comments submitted; the nature of possible decisions; and details of the arrangements for public participation.[171] The public must be given early and effective opportunities and sufficient time to participate in the decision-making while options are still open to the authorities. The views of the public as well as those of concerned public agencies by virtue of their specific environmental responsibilities must be taken into consideration in the consent procedure.[172] When the decision is made, the public must be informed of the content of the decision and the conditions attached if any; the main reasons and considerations on which it is based; and the main mitigation measures.[173] Finally, members of the public with a sufficient interest – by definition, this includes non-governmental organisations promoting environmental protection – must have access to a fair, equitable, timely, and not prohibitively expensive procedure to challenge the substantive or procedural legality of decisions, or acts or omissions subject to the public participation provisions of the Directive.[174]
Jo Treweek et al have noted that when it comes to ecological and biodiversity considerations, the environmental impact assessment process is arguably less effective because administrative and project boundaries rarely match the distribution and pattern of biodiversity. Furthermore, such assessments often lack the geographical and time frames to properly predict long term trends; ecosystem processes and interactions; cumulative threats and pressures and monitor data to better understand baseline trends and predict impacts.[175] One way to overcome these limitations and to better take into account ecological and biodiversity issues in land management would be, inter alia, to require a strategic environmental assessment when formulating land use policy. This is a valuable supplement to environmental impact assessment as it allows ecological and biodiversity issues to be considered at an even earlier stage – before actual cross strategic plans are adopted, projects are proposed and sites are earmarked. At this stage, a wider range of alternatives are available, so there is greater opportunity to avoid and mitigate ecological damage. An added benefit is that the strategic environmental assessment may be used as a tool for integrating a national biodiversity strategy and action plans into national development strategies.[176]
In Singapore, it is true that environmental considerations are as a matter of practice taken into account at the strategic level in the preparation of the non-statutory Concept Plan and review of the statutory Master Plan. However, there is currently no institutionalised arrangement in place to identify the likely significant adverse ecological impacts of a land use plan. Nor is there any assurance that such impacts will be avoided as far as possible through the systematic consideration of alternative plans, or at least mitigated as a last resort. Furthermore, formal opportunity for the public to participate in the revision of land use plans is limited under the Planning (Master Plan) Rules.[177] In practice, draft land use plans are more widely exhibited and public feedback is more extensively sought and encouraged than required by the legal requirements.[178] Nevertheless, in the absence of wide access to environmental information in the possession of State agencies and an opportunity to participate in a strategic environmental assessment of the land use plan, public participation can only be superficial at best.
It is therefore submitted that the requirements for strategic environmental assessments, and in particular, for greater public involvement in such assessments should be institutionalised. Strategic environmental assessment legislation now exists in some jurisdictions. Again, looking to Europe as an example, pursuant to European Union Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (‘SEA Directive’), an environmental assessment is required of statutory or administrative plans and programmes that are prepared by an authority at national, regional or local level, and are likely to have significant environmental effects, including those prepared for town and country planning or land use.[179]
The Directive sets out the mechanics of a strategic environmental assessment. Assessments must be carried out early; in this case during the preparation of the plan and before it is adopted or submitted to the legislative process.[180] An environmental report must be prepared, setting out the contents of the plan and its main objectives; the environmental characteristics of any area likely to be significantly affected; any relevant existing environmental problems; any relevant national, European, or international environmental protection objectives; the likely environmental effects of implementing the plan; the measures envisaged to prevent, reduce and offset any significant adverse environmental effects; the envisaged monitoring measures; and a non-technical summary.[181]
Just as public participation is a key component of the environmental impact assessment, a key component in the strategic environmental assessment is the provision of opportunities for public scrutiny and input. The EU Directive requires that the public be consulted,[182] and that the actual decision take into account their opinion.[183] Consultees must be informed of the plan as adopted, how environmental considerations have been integrated, the environmental report, the opinions of other consultees, including those of the relevant authorities and other Member States where applicable, the reasons for the choice of plan or programme as adopted and the planned monitoring measures.[184]
Modern land management law has been concerned with man’s relationship with one another in respect of their use of land and the resources therein. We now accept that even as land owners, whether private or public, our use of the land must be subordinated to the well-being of the community as a whole. However, this regard for the community has traditionally been myopically limited to the human community, and often narrowly focussed on maximising the short term economic value of the land. The law’s conception of the land as mere real estate reflects a social relationship with land that was developed as early as the seventeenth century. What began as a struggle for survival has today become, particularly in wealthier societies, a relentless desire to manipulate land as a resource to drive economic growth.
Advances in the fields of ecology and ethics inform us that humans are but a member of the complex web of life, and our long term fate is inextricably bound with that of other members of this web. As Geh Min, a Nominated Member of Parliament, rightly pointed out on the occasion of the recent second reading in Parliament of the Parks and Trees Bill,[185] ‘(o)ur larger vision of ourselves must encompass not only our economy and our people but our biodiversity and ecosystems’.[186] Like it or not, the land does not belong to us; we belong to the land. As the community’s most evolved species, we are not its masters, but merely its stewards for the duration of our existence. Thus, while we compete with the other members of the biotic community for space, we must also not forget our interdependence and the need to cooperate for the well-being of the biotic community.
The land and its ecological processes are intimately interconnected, and have no regard for man-made boundaries or rights over land; it is our laws that must be dictated by the ecological laws of the land and not the other way round. Our legal framework for land management is out of sync with reality and has impoverished our relationship with the land. Legal reform to reconnect us with the reality that the land is a community of life is both timely (if not overdue) and necessary.
[*] Assistant Professor, National University of Singapore. This article was first presented as a paper at the Society of Legal Scholars Annual Conference 2005 in Glasgow. I would like to thank David Randle, a student editor of the MJICEL, for his helpful substantive comments on my earlier draft of this article. All errors and shortcomings in this article are mine alone.
[1] J Locke, The Second Treatise of Government (first published 1690, ed 1946) 14-15.
[2] Ibid 22-23.
[3] See for example, B Rigsby, ‘Aboriginal People, Spirituality and the Traditional Ownership of Land’ (1999) International Journal of Social Economics 963.
[4] J Lovelock, Gaia: a New Look at Life on Earth (2000).
[5] A Leopold, ‘The Land Ethic’ in A Sand County Almanac AND Sketches Here and There (1968) 215-216.
[6] Ibid 218.
[7] Ibid 203-205.
[8] Ibid 224.
[9] Ibid 221.
[10] Ibid 223-225.
[11] United Nations General Assembly A/RES/37/7.
[12] (1985) 15 Environmental Policy and Law 64. The Agreement has yet to come into force because it has not yet been ratified by the requisite minimum of at least six Parties.
[13] Agreement for the Conservation of Nature and Natural Resources 1985 Article 12(1).
[14] 1760 United Nations Treaty Series 79.
[15] Preamble, Convention on Biological Diversity 1992.
[16] <http://www.earthcharter.org/files/charter/charter.pdf> (accessed 7 April 2006).
[17] The Earth Charter Initiative <http://www.earthcharter.org/innerpg.cfm?id_menu=19
> (accessed 7 April 2006).
[18] Emphasis added.
[19] Earth Charter Principle 1(b). Emphasis added.
[20] Ibid Principle 2.
[21] Ibid Principle 15.
[22] Rio Declaration on Environment and Development 1992, A/CONF.151/26 (Vol 1) Annex 1.
[23] Emphasis added. See also the World Commission on Environment and Development’ report in its report Our Common Future, World Commission on Environment and Development (1987) 13, that utility aside; there were moral, ethical, cultural, aesthetic, and purely scientific reasons for conserving wild beings. The Commission’s report brought the concept of sustainable development into the international agenda, and was a significant influence in the subsequent adoption of the Rio Declaration five years later.
[24] Johannesburg Declaration on Sustainable Development 2002, 1UN Doc A CONF 199/20.
[25] Emphasis added.
[26] Law professor John Tucker has identified at least 50 constitutions with environmental provisions. See ‘Constitutional Codification of an Environmental Ethic’ (2000) 52 Florida Law Review 299, 312.
[27] National Environmental Policy Act 1969 42 USC 4321-4347.
[29] 1986 No 27 long title.
[30] 1991 No 69 s 7.
[31] 2004 asp 6 s 1(1).
[32] Convention on Biological Diversity ss 1(2) and 2.
[33] Scottish Parliament Official Report (5 May 2004) col 8088.
[34] E Freygogle, ‘Ethics, Community, and Private Land’ (1996) 23 Ecology Law Quarterly 631, 648-649.
[35] See also E Freyfogle, ‘Ownership and Ecology’ (1993) 43 Case Western Law Reserve 1269, 1282-1283.
[36] J Karp, ‘A Private Property Duty of Stewardship: Changing our Land Ethic’ (1993) 23 Environmental Law 735.
[37] R Goldstein, ‘Green Wood in the Bundle of Sticks: Fitting Environmental Ethics and Ecology into Real Property Law’ (1998) 25 Boston College Environmental Affairs Law Review 347, 391-392 and 411-412.
[38] R Goldstein, Ecology and Environmental Ethics: Green Wood in the Bundle of Sticks (2004) 151.
[39] W Lucy, and C Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55(3) Cambridge Law Journal 566.
[40] C Arnold, ‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harvard Environmental Law Review 281.
[41] M Duncan, ‘Reconceiving the Bundle of Sticks: Land as a Community-Based Resource’ (2002) 32 Environmental Law 773.
[42] H Ho, ‘A Value Orientation for Nature Preservation in Singapore’ (1997) 44 Environmental Monitoring and Assessment 91.
[43] Ibid 92-93.
[44] Ho, above n 42, 94.
[45] Ho, above n 42, 93-95.
[46] Ho, above n 42, 100.
[47] Ho, above n 42, 97-99.
[48] Ho, above n 42, 100.
[49] Ho, above n 42, 95-96.
[50] According to the Singapore Land Authority, <http://www.sla.gov.sg/what_we_do/what_we_
do_land_sales.html> (accessed 18 April 2006).
[51] According to the Singapore Department of Statistics, on its website at <http://www.singstat.
gov.sg/keystats/annual/indicators.html> (accessed 18 April 2006).
[52] ‘Singapore’s Green Look Result of 30-year Policy, says SM Lee’, The Straits Times (Singapore), 21 October 1995.
[53] K Koh, ‘Singapore: Fashioning Landscape for “The Garden City”’ (IUCN Environmental Policy and Law Paper No 39, Landscape Conservation Law: Present Trends and Perspectives in International and Comparative Law, IUCN Bonn, 2000) 39, 40.
[54] S Lee, ‘Concept of the Garden City’ in G Ooi (ed), Environment and the City: Sharing Singapore’s Experience and Future Challenges (1995) 129, 133.
[55] ‘Look Up, See the Green’, The Straits Times (Singapore), 24 February 2001; and ‘Green Piece’, The Straits Times (Singapore), 5 October 2002.
[56] ‘City in a Garden Plan set out for Singapore’, The Straits Times (Singapore), 11 December 1998; and ‘Green Piece’, The Straits Times (Singapore) 11 December 1998.
[57] ‘Another Botanic Gardens Planned for Bay Area’, The Business Times (Singapore), 14 January 2005.
[58] ‘Singapore All Set to Clone its Garden City Success Overseas’, The Straits Times (Singapore), 31 December 2003.
[59] K Koh, ‘The Garden City and Beyond: the Legal Framework’, in Ooi, above n 54, 148, 166.
[60] H Ho, ‘Don’t Forget the Singapore Countryside’, The Straits Times (Singapore), 31 December 2004; and ‘Clean and Green is Not Green Enough’, The Straits Times (Singapore), 11 November 2005.
[61] While of late, greater attention is being given to the threat of exotic species, the replacement of exotic species with indigenous ones is confined to the fringes of nature reserves and natures areas. See ‘The Garden City is Getting Greener’, The Straits Times (Singapore), 6 November 2003.
[62] R Corlett, ‘The Ecological Transformation of Singapore, 1819–1990’ (1992) 19 Journal of Biogeography 411, 415.
[63] B Brook et al, ‘Catastrophic Extinctions Follow Deforestation in Singapore’ (2003) 424 Nature 420, 421.
[64] Corlett, above n 62, 415.
[65] C Briffett and J Mackee, ‘Environmental Assessment in Singapore: an Enigma Wrapped in a Mystery!’ (2002) 20(2) Impact Assessment and Project Appraisal 113, 114.
[66] ‘Orchard Road’s Red Hot – and It’s Not About the Sales’, The Straits Times (Singapore), 14 October 2005.
[67] X Lu et al, Singapore’s Biophysical Environment (2005) 69.
[68] Fortunately, a number of the introduced species in the open areas have become ‘naturalised’ over the years and are actually contributing to local biodiversity. See Corlett, above n 62, 418 and 419.
[69] Ibid.
[70] Brook et al, above n 63, 421, citing I Turner, ‘A Study of Plant Species Extinction in Singapore: Lessons for the Conservation of Tropical Biodiversity’ (1994) 8 Conservation Biology 705; and R Corlett, ‘Environmental Heterogeneity and Species Survival in Degraded Tropical Landscapes’ in M Hutchings et al (eds), The Ecological Consequences of Environmental Heterogeneity (2000) 333.
[71] Brook et al, above n 63, 422.
[72] I Turner, ‘The Inventory of Singapore’s Biodiversity’ in Y Wee and P Ng (eds), A First Look at Biodiversity in Singapore (1994) 47, 50.
[73] ‘There’s Life Aplenty in the Nature Reserves’, The Straits Times (Singapore), 21 June 1999. The statement was based on a six-year survey of the biodiversity in the nature reserves in Singapore carried out from 1992, and reported in L Chan and R Corlett (eds), ‘Biodiversity in the Nature Reserves of Singapore: Proceedings of the Nature Reserves Survey Seminar, Singapore, December 1997’ (1999) 49(2) The Garden's Bulletin 147-425. More recently, a scientific study found that forest reserves comprising only 0.25 percent of Singapore’s area now harbour over 50 percent of the residual native biodiversity. See Brook et al, above n 63.
[74] ‘Same Tree Species in Bt Timah Forest for Last 5,000 Years’, The Straits Times (Singapore), 21 May 2005.
[75] ‘Green Peace’, The Straits Times (Singapore), 9 August 2005 (17 September 2005).
[76] Turner, above n 72, 48.
[77] Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330.
[78] Leaky v National Trust [1980] QB 45.
[79] See Cambridge Water Company v Eastern Counties Leather plc [1994] 1 All ER 53, 75 (Lord Goff of Chieveley).
[80] Environmental Pollution Control Act (Cap 94, 2002 rev ed, Parts IV, V, VI and VIII). Statutes in this article refer to Singapore statutes unless otherwise stated.
[81] Environmental Public Health Act (Cap 95, 2002 rev ed) s 43.
[82] Defined as the release into any environmental medium from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment.
[83] Wild Animals and Bird Act (Cap 351, 2000 rev ed). For an overview of the Act, see L Lye, ‘Wildlife Protection Laws in Singapore’ [1991] Singapore Journal of Legal Studies 287.
[84] Wild Animals and Bird Act ss 5 and 6.
[85] Act No 4 of 2005 s 13(1).
[86] Parks and Trees Act 2005, s 14.
[87] Parks and Trees Act 2005 s 15.
[88] Parks and Trees Act 2005 s 18.
[89] Parks and Trees Act 2005 ss 16 to 19.
[90] Parks and Trees Bill, 55 of 2004.
[91] Singapore Parliamentary Debates Official Report (25 January 2005) vol 79, col 502.
[92] Planning Act (Cap 232, 1998 rev ed).
[93] The five-yearly review of the Master Plan follows a 10-yearly review of the non-statutory Concept Plan, a strategic land use plan that guides the physical development of Singapore for the next 40 to 50 years. The public consultation exercise prior to the finalization of the Concept Plan takes the form of a ‘soft sell’ using fancy multimedia, sleek posters and intricate models at regional exhibitions to publicise the benefits of the draft plans. The public is encouraged to give feedback through various channels including focus groups, public forums, the internet and mail. Crucially, there is usually little or no information given about the environmental and ecological consequences of these plans.
[94] Reconstituted under s 3 of the National Parks Board Act (Cap 198A, 1997 rev ed).
[95] C Briffett et al, ‘The Potential for Strategic Environmental Assessment in Asia: Singapore Country Report for the EARTH Project: Final Report of University Funded Research Project No RP 297-000-023-112’ (Centre of Real Estate Studies, Department of Real Estate, National University of Singapore, 2001) 12, 38. See also K Koh, ‘Singapore’ in J Carew-Reid (ed), Biodiversity Planning in Asia (2002) 239, 251, noting the National Parks Board’s relative lack of power when confronting ‘major development organisations’ such as Urban Redevelopment Authority, the then Ministry of Communications (now the Ministry of Transport), and the Public Utilities Board.
[96] Defined as the building, engineering, mining, earthworks or other operations in, on, over or under land; or the making of a material change of use of land.
[98] S Foo (ed), The Singapore Green Plan 2012 (2006 ed) 14 <http:// www.mewr.gov.sg/ sgp2012/files/sgp2012_2006 edition.zip> (accessed 18 April 2006).
[99] L Chua, Singapore Green Plan 2012: Beyond Clean and Green: Towards Environmental Sustainability (2002) 9 <http://www.mewr.gov.sg/sgp2012/files/sgp2012.zip> (accessed 18 April 2006). The five percent includes statutorily protected nature reserves, referred to below, which make up four percent of Singapore’s land area. See URA Skyline (March/April 2004) <http://www.ura.gov.sg/skyline/skyline04/skyline04-02/text/p10.html> (accessed 18 April 2006). As a comparison, 12.5% of Singapore’s total land area is set aside for roads. See Concept Plan Review Final Report of Focus Group on Land Allocation (December 2000) 6 <http://www.ura.gov.sg/interim/report1.pdf> (accessed 18 April 2006). Also according to the report, Singapore’s 22 golf courses and three temporary sites used for golf occupy 2.2% of Singapore’s total land area. See Concept Plan Review Final Report of Focus Group on Land Allocation (December 2000) 29. This makes it the country with the highest density of golf courses. See J Barton, ‘Spanning the Globe: Where the Best Golf is Played’, Golf Digest (United States), May 2005, on the Golf Digest website <http://www.golfdigest.com/ planetgolf /> (accessed 18 April 2006). The Urban Redevelopment Authority permit the development of these golf courses because they are sited in areas where no other developments, ie, in water catchment areas or under flight paths’. This however does not explain why it is not possible to leave the land in these areas undeveloped. Perhaps a more weighty reason for the government’s commitment to golf course development could be that golf courses are considered necessary in a business city such as Singapore, where golf is used extensively by the business and diplomatic communities. In this regard, Singapore is not the only country in the region setting aside large tracts of land for golf course development. See for example, P Chatterjee, ‘Clubbing South East Asia: the Impacts of Golf Course Developments’ (1993) 15(11) Multinational Monitor 13 <http://multinationalmonitor.org/hyper/issues/1993/ 11/mm1193_13.html> (accessed 18 April 2006); and K Kim and D Murabayashi, ‘Recent Developments in the Use of Environmental Impact Statements in Korea’ (1992) 12 Environmental Impact Assessment Review 295, 310. The notable difference is that golf course development is a relatively land intensive use for a small country such as Singapore.
[100] URA website <http://www.ura.gov.sg/ppd/gazettedmp2003/index.htm> (accessed 21 March 2006).
[101] Foo above n 98, 14.
[102] Chek Jawa has been described as ‘this jewel of an estuarine eco-system’. See Chua, above n 99, 10. The National Parks Board describes it as ‘one of Singapore’s richest ecosystems’ and ‘a unique natural area where six major habitats meet and mix’ on its website <http://www.nparks.gov.sg/nparks_cms/display_level2.asp?parkid=6&catid=2> (18 April 2006). A Minister of State for National Development described it as an example of ‘sites of high or unique biodiversity’. See speech by Vivian Balakrishnan at the official opening of ‘Biodiversity Symposium 2003: the State of Biodiversity Research, Education and Management in Singapore’; on the website of the Ministry of National Development <http://www.mnd.gov.sg/newsroom/speeches/speeches_snd2003_110703.htm> (accessed 18 April 2006).
[103] ‘Reprieve for Rustic Ubin’, The Straits Times (Singapore), 2 January 2002.
[104] The Master Plan 2003, on the URA website <http://www.ura.gov.sg/ppd/gazettedmp2003/ index-frontmp2003.htm> (12 July 2005).
[105] Parks and Trees Act.
[106] Parks and Trees Act s 7(3). Emphasis added.
[107] Parks and Trees Act s 62.
[108] Parks and Trees Act ss 8 and 9. The activities are: cutting, collecting or displacing any tree or plant or any part thereof; affixing, setting up or erecting any sign, shrine, altar, religious object, shelter, structure or building; clearing, breaking up, digging or cultivating any land; using or occupying any building, vehicle, boat or other property of the National Parks Board; wilfully dropping or depositing any dirt, sand, earth, gravel, clay, loam, manure, refuse, sawdust, shavings, stone, straw or any other matter or thing from outside the national park or nature reserve; capturing, displacing or feeding any animal; disturbing or taking the nest of any animal; collecting, removing or wilfully displacing any other organism; using any animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of capturing any animal; and carrying or having in possession any explosive, net, trap or hunting device.
[109] Parks and Trees Act s 4.
[110] One third of St John’s Island was converted to a detention centre in 1999. On the other half of the island, the rolling green hummocks were levelled to make way for a new commercial marine aquaculture facility. See ‘Barbed Wires, Fences Go Up in St John’s’, The Straits Times (Singapore), 25 February 1999.
[111] Coastal and sea reclamation on the northern coast of the Pulau Tekong nature area may destroy one of the largest mangrove areas in Singapore with its many rare and threatened species of plants and animals. See H Ho, ‘Towards a Greener Plan for Nature Preservation in Singapore’ in C Briffett and H Ho (eds), State of the Natural Environment in Singapore (1999) 108, 112-113.
[112] Pulau Semakau was formerly a designated nature area. In 1995, construction work began to convert it into a landfill for waste disposal by joining the island with Pulau Sakeng, another island. The landfill started operations in 1999. The island, including its mangrove-rich areas which were once designated nature areas, is earmarked for development for ‘infrastructure and industrial uses’ in the long term. See ‘Land-use Surprise: Coral Sites, Mangrove Areas to Go’, The Straits Times (Singapore), 22 April 2003.
[113] Ibid. Sungei Khatib Bongsu in the Khatib Bongsu nature areas was dammed to form a reservoir.
[114] See H Ho, ‘The Singapore Green Plan Endangered’ (1996) 4(3) Nature Watch 4, in which Ho questioned the need for sacrificing nature areas for housing when 90 percent of Singaporeans already owned a home, and there was already an oversupply of private and public housing, when there was sufficient land for 22 golf courses; and when low-rise industrial buildings instead of high-rise ones were increasingly being built. See also D Nathan, ‘Consider New Ideas Before Encroaching into Nature Area’ The Straits Times (Singapore), 14 January 1999, in which the journalist questioned whether Singapore’s planners had considered all options before deciding to encroach on nature areas.
[115] ‘Can Land-scarce S'pore Afford Nature Conservation?’ The Straits Times (Singapore), 13 September 1998.
[116] Ho, above n 111, 119.
[117] Land Transport Authority Act (Cap 158A, 1996 rev ed) s 6(1)(a).
[118] ‘Future MRT Link for Towns in North’, The Straits Times (Singapore), 16 April, 2005.
[119] ‘URA to Develop a part of Khatib Bongsu’, The Straits Times (Singapore), 10 May 1996. See also Ho, above n 114, 114-115; and Ho, above n 111, 120.
[120] H Ho, Feedback on the Singapore Green Plan (unpublished, 1993) 23.
[121] ‘Nature Society Suggests Other Sites for Golf Course’, The Straits Times (Singapore), 1 October 1992.
[122] Public Utilities Act (Cap 261, 2002 rev ed) s 6(1).
[123] Singapore Parliamentary Debates Official Report (31 July 1992) vol 60, col 105.
[124] Y Wee (ed), Proposed Golf Course at Lower Pierce Reservoir: an Environmental Impact Assessment (1992).
[125] T Tan, Social Capital and State-Civil Society Relations in Singapore (2001) 11-17 <http://www.ips.org.sg/pub/wp9.pdf> (accessed 18 April 2006).
[126] ‘Water Tanks Being Built in Forest’, The Straits Times (Singapore), 23 August 1998.
[127] Ibid.
[128] ‘Water Tank Site a Good Compromise’, The Straits Times (Singapore), 13 September 1998.
[129] ‘Minimising Damage to Forest’, The Straits Times (Singapore), 23 August 1998; and ‘Water Tank Site a Good Compromise’, The Strait Times (Singapore), 23 August 1998. According to the Minister for National Development, this site consists of young forests with no key forest species. See Singapore Parliamentary Debates Official Report (4 September 1998) vol 69, col 965.
[130] G Francis, ‘Why Must We Give Up Nature Reserves?’, The Straits Times (Singapore), 29 August 1998.
[131] ‘Kranji Sanctuary Golf Course to Open All 18 Holes on Nov 9th, channelnewsasia.com, 27 October 2004.
[132] ‘Grouses Should End with NUS Dons Saying New Course is No Threat’, The Straits Times (Singapore), 5 May 2002.
[133] ‘Green Nature Lovers – Don’t Reclaim Birds’ Feeding Ground - Leave Wider Strip of Green Corridor’, The Straits Times (Singapore), 3 July 2003; and H Ho, ‘Greens Anything but “Real Nature Sanctuary”’, The Straits Times (Singapore), 13 November 2004. See also H Ho, ‘Nature Society (Singapore)’ (Conservation Committee Report, September 2002) on the Nature Society website <http://www.nss.org.sg/new/> (8 November 2004).
[134] ‘Nature’s New Neighbours – Forests on the One Side, Condos on the other’, The Straits Times (Singapore), 27 September 1996.
[135] Singapore Parliamentary Debates Official Report (2 May 1996) vol 66, col 125.
[136] ‘New Ubin Fence to Stop Illegal Entry’, The Straits Times (Singapore), 9 May 2003.
[137] See, for example, ‘Govt Committed to Nature Conservation, says PM Goh’, The Straits Times, (Singapore), 7 December 1993.
[138] For example, two of the four current nature reserves, Sungei Buloh and Labrador Park, are recent designations. According to the then Prime Minister, although Sungei Buloh was actually zoned for an economically profitable agro-technology park, the government decided to ‘turn it over to the birds’; part of the Seletar Expressway was rerouted to skirt round the Nee Soon swamp forest nature reserve instead of cutting through it; a proposed reclamation of the Tanjung Chek Jawa in Pulau Ubin was shelved at the last minute when the exceptionally ecologically rich habitats of the site were accidentally discovered. See above n 137; ‘Sungei Buloh and Labrador: Two New Nature Reserves’, The Straits Times (Singapore), 12 November 2001; see above n 128; and ‘Reprieve for Rustic Ubin’, The Straits Times (Singapore), 15 January 2002.
[139] G Ooi, Sustainability and Cities: Concept and Assessment (2005) 93.
[140] Leopold, above n 5, 202-203.
[141] Leopold, above n 5, 209-210.
[142] A Tan, ‘Reconciling Environmental and Developmental Imperatives in Singapore and Cross-Border Environmental Protection in ASEAN’ (paper presented at the International Conference on ASEAN Legal Systems and Regional Integration, Asia-Europe Institute, University of Malaya, Kuala Lumpur, Malaysia, 3–4 September 2001) 3, available online at <http://law.nus.edu.sg/apcel/publications/pub/tankheejin/klconf0901.pdf> (accessed 13 April 2006). As Tan goes on to point out, it is precisely so much of Singapore’s natural heritage has been lost that more effort must be expended to protect what precious little is left.
[143] G Ooi, ‘The Role of the State in Nature Conservation in Singapore’ (2002) 15 Society and Natural Resources 455, 459 and 460.
[144] The closest function the Board has towards ecological stewardship is the propagating, protecting and preserving of the plants and animals of Singapore.
[145] According to the Annual Report 2004/5 of the Singapore Land Authority, <http://www.sla.gov.sg/doc/new/SLA_AR0405.pdf> (accessed 18 April 2006), the Authority managed 75% of the total area of State land as at March 2005.
[146] Cap 301, 2002 rev ed.
[147] Singapore Land Authority Act s 6(1)(a).
[148] Singapore Land Authority Act s 6(1)(e)(ii).
[149] Singapore Land Authority Act s 6(2).
[150] Act 91 of 1999 (Cth) ss 178 and 181.
[151] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 189(1).
[152] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 189(3).
[153] Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 186(2) and 187(2). Exceptionally, a threatened species may be excluded from the list if it poses a serious threat to human health. See s 193.
[154] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 184.
[155] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 207A.
[156] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 172(1).
[157] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 174.
[158] The Minister may consider social and economic factors in his deliberation.
[159] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 273.
[160] Decision VI/7 of the Conference of the Parties to the Convention on Biological Diversity 1992, Annex para 1a, <http://www.biodiv.org/decisions/default.aspx?m=COP-06&id=7181&lg=0> (accessed 18 April 2006).
[161] For example, Goldstein, above n 37, 427-430; and L Butler, ‘The Pathology of Property Norms: Living within Nature’s Boundaries’ (2000) 73 Southern California Law Review 927, 1005-1009.
[162] <http://www.aseansec.org/6080.htm> (accessed 18 April 2006).
[163] Environmental Pollution Control Act (Cap 94A, 2002 rev ed).
[164] According to s 2, pollution of the environment refers to the release from any process into any environmental medium, substances that are capable of causing harm to man or any living organisms supported by the environment.
[165] As far as I’m aware, the only exception to date is the recent marine environmental impact assessment on proposed reclamation works at Pulau Ular, a southern offshore island, commissioned by the Jurong Town Corporation, a statutory board established under the Jurong Town Corporation Act (Cap 150 1998 rev ed). The report was made available for public viewing by prior appointment at the corporate office of the Corporation for a period of four weeks from 11 January 2006.
[166] Singapore Parliamentary Debates Official Report (20 July 2005) vol 80, Oral Answer to Question 4.
[167] See L Lye, ‘Legal Protection of the Natural Environment’ in Briffett and Ho (eds), above n 111, 83, 89-90; Koh, above n 59, 166-167; and K Foo, L Lye, and K Koh, ‘Environmental Protection: the Legal Framework’ in Ooi (ed), Environment and the City: Sharing Singapore’s Experience and Future Challenges (1995) 47, 87. See also K Lim, ‘Conserving Singapore’s Biodiversity’ (2000) 8(2) Nature Watch 2; and C George, ‘EIAs Not Just a Green Weapon to Thwart Development Efforts’, The Straits Times (Singapore), 12 September 1992.
[168] See speeches by Nominated Member of Parliament Simon Tay during the Second Reading of the Environmental Pollution Control Bill – Singapore Parliamentary Debates Official Report, (11 February 1999) vol 69, col 2000; and Nominated Member of Parliament Geh Min during the Second Reading of the Parks and Trees Bill – Singapore Parliamentary Debates Official Report (25 January 2005) vol 79, col 502.
[169] Singapore Parliamentary Debates Official Report (25 January 2005) vol 79, col 502.
[170] Official Journal of the European Union L 175/40 Articles 3 and 5, and Annex IV.
[171] 2161 United Nations Treaty Series 447 Article 6.
[172] Aarhus Convention Article 8.
[173] Aarhus Convention Article 9.
[174] Aarhus Convention Article 10a.
[175] J Treweek et al, ‘Principles for the Use of Strategic Environmental Assessment as a Tool for Promoting the Conservation and Sustainable Use of Biodiversity’ (2005) 7(2) Journal of Environmental Assessment Policy and Management 173, 175.
[176] See Decision VI/7, above n 160, Annex para 6.
[177] Planning (Master Plan) Rules (Cap 232, R 1, 2000 rev ed). Where the Minister of National Development considers a proposed amendment to be a material one, the proposal must be advertised in the Gazette and one newspaper in each of the four official languages specifying a period of at least two weeks for the submission of written objections and representations, and the place where the proposed amendment may be inspected during office hours. Unless the objection or representation is deemed frivolous, the Minister must allow the objector or representor an opportunity to be heard at a hearing or public inquiry presided by the Minister’s appointee(s). At the end of the hearing or inquiry, the appointee(s) submits his findings and conclusions to the Minister. There is no requirement to make these findings or conclusions available to the public. After considering the proposed amendment, the Master Plan, the objections and representations, and the findings and conclusions of the hearing or inquiry, the Minister may approve the proposal with or without further amendment, or reject the proposal without having to give any reasons for doing so. Where a proposed amendment is approved, with or without amendments, the approval must be advertised and notified to the objectors and representors.
[178] See for example, ‘S’pore to Stay Green as it Grows’, The Straits Times (Singapore), 29 April 2001; and ‘Response to URA Landscape Plans Good’, The Straits Times (Singapore), 26 July 2002.
[179] Official Journal of the European Union L 197/30, Article 3.
[180] SEA Directive Article 4.
[181] SEA Directive Article 5 and Annex 1.
[182] SEA Directive Article 6.
[183] SEA Directive Article 8.
[184] SEA Directive Article 9.
[185] Singapore Parliamentary Debates, above n 90.
[186] Singapore Parliamentary Debates Official Report (25 January 2005) vol 79, col 502.
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