McDonald, Jan --- "Editorial" [2015] UTasLawRw 1; (2015) 34(1) University of Tasmania Law Review i

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Editorial

JAN MCDONALD^

Environmental law is undergoing a period of profound and alarming change. Despite decades of regulatory efforts aimed at improving resource exploitation and management and enhancing land use planning and environmental management,¹ indicators of environmental health continue to decline.² The traditional drivers of environmental degradation in Australia continue apace – habitat clearance or modification for human populations, agriculture, and resource extraction. At the same time, the impacts of climate change threaten to fundamentally and irreversibly transform our natural, built and social environment.³ Never has the need been greater for powerful laws to protect environmental values for present and future generations.

Yet at the same time that the declining state of our natural and urban environments calls for more effective protection through law, the regimes established to address them are being dismantled, diluted, or stripped of resources. The current facilitation by the Commonwealth and most State and Territory laws of coal and coal seam gas expansion, biodiversity offsetting, and other development reflect a persistent under-valuation of environmental goods and services. The Commonwealth’s repeal of the carbon pricing mechanism, lowering of the renewable energy target, and attempts to accredit the decisions of state governments under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) are widely regarded as eroding critical aspects of Australia’s environmental ‘safety net’.⁴

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Professor, Faculty of Law, University of Tasmania.

1

For a history of Australian environmental law, see Gerry Bates, Environmental Law in Australia (LexisNexis Butterworks, 8^th ed, 2013).

2

Australian State of the Environment Committee, State of the Environment 2011: Independent report to the Australian Government Minister for Sustainability, Environment, Water, the Arts and Communities (2011, Department of Sustainability, Environment, Water, Population and Communities).

3

Will Steffen, ‘A Truly Complex and Diabolical Policy Problem’ in John S Dryzek, Richard B Norgaard, and David Schlosberg (eds), Oxford Handbook of Climate Change and Society (2011) 21.

4

Chris McGrath, ‘Explainer: One-Stop-Shop for Environemtnal Approvals’, The Conversation (Online), 13 December 2013 <https://theconversation.com/explainer-onehttps://theconversation.com/explainer-one-stop-shop-for-environmental-approvals-19515stop-shop-for-environmental-approvals-19515>.

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Environmental law academics met in February this year to explore these issues further when the University of Tasmania’s Faculty of Law and the

National Environmental Law Association held the inaugural Frontiers in Environmental Law Colloquium in February 2015. Twenty-five academics from across the country met over two days to discuss each other’s current research and innovations in environmental law teaching and assessment practices. The program reflected the breadth of modern environmental law.

Starting with Professor Paul Martin’s reflections on ten years of innovative research methods for environmental law reform, all presentations had a strong focus on the need for environmental law to engage with wider public policy debates and constraints. Subsequent sessions on the currently regulatory frameworks, and processes of deregulation and ‘re-regulation’, the role of private actors and market instruments, and multi-sectoral and multi-scale governance tested the adequacy of current arrangements in the face of climatic, social, economic and technological change. All presentations highlighted the need for environmental law researchers to look beyond traditional legal doctrinal analysis and engage with disciplines of philosophy, regulatory theory, public policy, economics, and ecology.

This Special Issue of the University of Tasmania Law Review arose from the ‘Frontiers’ colloquium and the papers contained explore many of its underpinning themes. Two contributions use justice as a theoretical lens for evaluating the performance of environmental law or proposal new reforms. In ‘Justice, Recognition and Environmental Law’, Brad Jessup argues that justice may deliver better environmental outcomes than Australian law’s traditional focus on sustainability. His detailed examination of the conflict and associated litigation over proposed logging of Tasmania’s Weilangta Forest queries the adequacy of protections which current constructs of ‘justice’ afford to various affected communities. Jessup thus proposes that ‘recognition’ should be a defining element of environmental justice, including the explicit recognition accorded to individual species and nature as a whole, the law, and the claims of various actors. He suggests that this new meta-principle might be used with benefit to challenge or at least dilute the dominance of sustainability as the underpinning norm of modern environmental law.

The value of justice as a theoretical lens for interpreting legal problems and developing reform proposals is also explored by Rebecca Byrnes and Peter Lawrence. In ‘Can “Soft Law” Solve “Hard Problems”?’, the authors argue that questions of legal form in international climate negotiations are critical for securing environmental justice. Focusing on December’s Conference of the Parties to the United Nations Framework Convention on Climate Change, the authors propose a new approach to developing the next climate agreement. This approach is underpinned by

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concerns of international and intergenerational justice. Taking such a justice-based approach, the authors argue that hard law treaties offer enhanced compliance and effectiveness. If political will proves lacking in December, the authors propose strategies by which the international community could transition from soft to hard emissions reduction obligations over time.

The need for flexibility in regulatory approaches and the modern preference for market-based approaches to environmental protection and resource management was another key theme of the Colloquium. The articles by Michael Bennett and Philippa England explore these themes from very different sectoral and doctrinal perspectives.

In ‘Adjusting Collective Limits on the Use of Natural Resources’, Bennett analyses the inherent tensions between the need for resource managers to be able to respond to changed environmental conditions and the interests of statutory share entitlement holders in predictable, reliable access to resources. Bennett examines how collective limits on resource extraction for fisheries and water are set, and whether these circumstances trigger an entitlement to compensation under the Australian Constitution’s provisions regarding acquisition of property or under the specific resource management legislative regimes. Bennett warns that too strong a focus on compensation risks undermining sustainable resource management at the expense of individual interests. He argues that the best way to strike an appropriate balance between flexibility and reliability is in improving the way that collective limits are adjusted, rather than through compensation for any adjustment.

Bennett’s article was written before publication of the Australian Law Reform Commission’s Draft Report into Traditional Rights and Freedoms – Encroachment by Commonwealth Laws, which recommended not only that environmental regulations that constituted acquisition should be compensable, but that environmental limits on the uses to private property may be put should be compensated.^[1] While the ALRC’s Draft Report has potentially broader reach and ramifications, Bennett’s analysis of constitutional law jurisprudence on compulsory acquisition suggests a more nuanced framing of the nature and limits of property rights under such statutory resource management regimes.

Clarifying the scope of legitimate limits on private property rights for environmental or conservation purposes is critically important, given the limits on government funding for the national reserve system, and recognition that range shifts under climate change will demand increased conservation on private land. The importance of private actors in conservation management is the subject of Philippa England’s article on

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Conservation Covenants. England’s evaluation of the effectiveness of these regulatory tools for promoting conservation on private land highlights that concerns over interference with private property rights act as a disincentive for many landowners. For some, covenant arrangements will only be considered if there is scope to negotiate some flexibility in the obligations imposed by conservation covenants. The need for financial incentives is also critical, either through direct compensation, fees for conservation services, including carbon storage, or tax/rates relief. Other key elements to successful arrangements included building a relationship of trust between landowners and government and maintaining consistency in government policy and practice. England identifies several issues that undermine the value of conservation covenants, including cost, enforcement, and the risk that biodiversity outcomes cannot be guaranteed over time. These preconditions and problems lead England to advocate for a more cautious, evidence-based approach to future conservation initiatives on private land.

This Special Issue also contains a collection of shorter research and case notes and book reviews from Dr David Leary, Aaron Moss and various University of Tasmania Law Review editorial members. In particular, Leary’s research note on synthetic biology points to the potential environmental risks and legal challenges for regulating the development of this new technology. Book reviews on the use of enforcement networks to enhance the effectiveness of environmental regulation, Japan’s International Fisheries Policy, and armed conflicts in international law highlight the breadth of modern environmental law.

On current trends, further erosion of legal protections for nature and environmental values seems likely to continue. In the days before this Special Issue went to press, the Commonwealth House of Representatives passed an amendment to the Commonwealth’s EPBC Act, removing the open third party standing test for persons or groups seeking judicial review of Ministerial decisions under the Act.⁶ This amendment has been referred to the Senate Environment and Communications Legislation Committee, while another Parliamentary Committee is considering whether to strip environmental advocacy groups, including the nation’s Environmental Defenders’ Offices, of their charitable status which currently makes donations to those organisations tax-deductible.⁷

⁶ Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015

⁷ House of Representatives Standing Committee on the Environment, Inquiry into the Administration, Transparency and Effectiveness of the Register of Environmental

Organisations under the Income Tax Assessment Act 1997 (Cth)

<http://www.aph.gov.au/Parliamentary_Business/Committees/House/Environment/REO/T erms_of_Reference> .

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The challenges are increasing for practitioners and scholars of environmental law and others seeking to protect Australia’s unique environmental assets through the law. The collection of papers included in this Special Issue of the University of Tasmania Law Review makes but a modest contribution to the debate about how best to (re)structure our arrangements for environmental law and governance, but we hope it provides a platform for further scholarship and interdisciplinary engagement at the frontiers of environmental law.

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^[1] ALRC Interim Report No 127 (2015).