Authored By: Wade Harris
Deakin University
Abstract:
This article examined Australia’s environment law framework, with a distinct focus on how the law conceptualises ecological entities and whether it can support a new beginning for their legal recognition. Australia’s conventional legal treatment of nature is rooted in the idea that entities are mere objects of regulation, resources, or property; this view often leads to the protection of the environment being placed behind human economic and development priorities. The objective of this article was to identify the weak points in Australia’s system and ultimately propose a system that would allow for the rights of ecological entities to be recognised and balanced with human development.
The goal to protect the environment has been ever-present, especially in recent years. However, it found that there were flaws in the system that did not allow for protection to be the central idea. These flaws include an absence of environmental entity personality, enforcement difficulties, and administrative discretion. Ultimately, the article proposes a system built on a Universal Declaration of Environmental Rights that is interpreted on a case-by-case basis by judges and independent body of ecological experts to act as a guardian and represent entities in proceedings.
Keywords:
I An Overview of Nature’s Treatment and it’s New Beginnings
A Conventional Legal Treatment of Nature
Before we come to a conclusion, or even begin analysing the issue of environmental mistreatment, we must first understand what the conventional legal treatment of nature is – the baseline principal this journal seeks to rebut. In most Australian law, the view of nature does not extend beyond mere property. Nature is treated as no more than a resource to be owned, regulated, used, or managed;[1]yet it can be so much more.
Property framing is one of the key aspects that builds the framework for this view on nature. An example of this is the case of Yanner v Eaton, where the High Court decided that two juvenile estuarine crocodiles – while not being under ordinary beneficial ownership – were “property” in the form of regulatory control.[2]
Similarly, regulatory framing is an issue that highlights how the law protects nature and how current protection methods reinforce the conventional perception of nature as a non-entity with an absence of its own legal interests. The use of environmental statutes is the key theme here. Environmental statutes most often point directly to human conduct by setting conditions, permits, prohibitions, enforcement mechanisms, and approvals.[3]
What hopefully comes as a shock to no one is that nature itself cannot sue. To have a standing to sue you must be considered a legal person; however, how can this standing arise when you lack any rights? Accordingly, the enforcement of environmental protection is limited to only those affected, some government agencies, or litigants with a “special interest”.[4] This shifts the law’s focus onto, not what is best for the ecological entity, but who may complain.
As society continues to develop, more environmental cases rise to the forefront of disputes in administrative law. This has been done through judicial review of government decisions, standing, and jurisdictional fact.[5]As a result, the effects on the environment have become more prominent in decision-making, not because nature grasps its own legal rights, but because the people making decisions must consider it.
B Why May This be Inadequate?
We have established what the conventional legal treatment of nature is; but why is this inadequate? All the above factors that build the framework for Australian laws treatment of the environment all have one thing in common – they reduce nature to a resource. Whether it be dubbing nature as a beneficial resource or one that must be regulated, the interests of mother nature will always fall second to those of humans.
We limit harm to the environment by enacting environmental legislation, but does that really help when it is protected only insofar as the legislation restricts the behaviour of humans? Nature is unable to defend itself the way humans can, yet there are substantially more measures in place to look after humans. It begs us to wonder why, if all humans can be entitled to those rights in the Universal Declaration of Human rights, those beings that make up the environment can not have their own.
This is why our current legal treatment of nature is inadequate. At our current state, the future of the environment is not a priority, and our current measures are not enough to protect it. If we continue our current treatment, we spiral into an ongoing world where corporations and those with large amounts of power turn environmental protection laws into a skilful evasion – all for a profit at the expense of what makes our planet so beautiful.
C The Article’s Thesis and Structure
First, this article will look at legal personality and ecological entities by defining central concepts surrounding them. This will distinguish what it means to recognise an entity as a legal person as opposed to recognising it for ecological values.
Next, the limits of Australia’s existing environmental framework. This will be done by examining areas where existing law may not have nature’s best interest at heart. This is a key area for highlighting the need for reform to keep our law up to date with environmental needs.
Following all this, enough research and evaluation would have been done to look at designing an appropriate model for Australia – a principal reform. This will include a discussion of what the model must contain to be deemed workable in our current society. This will lead into the article’s conclusion.
II From Nature as an object, to Nature as a Legal Subject
A Legal Personality and Ecological Entities
- Legal personality
The capacity for human individuals to have legal rights stems from their recognition by the common law as having a legal personality.[6] However, there is an issue that arises as to whether environmental entities can fall under this fundamental principle. It is implied that a person has individual autonomy on the basis of their legal personality and capacity for legal rights – that they have the mental capacity to make decisions for themselves.[7]
As opposed to arguing that ecological entities can make decision for themselves, it is better to suggest change. For example, the case of X and Y (By her Tutor X) v Pal and Others serves as a principal case that not all those who lack mental capacity are forbidden rights. Here, the New South Wales Court of Appeal held that an individual had the right to bring proceedings against the defendant for conduct affecting them before being born.[8]In this case, the applicant was required to commence proceedings with X as her tutor. This leads to the later mentioned suggestion of an impartial body that can commence proceedings as a tutor for environmental entities.
- Legal subjectivity
Legal subjectivity is an idea that serves as a complement to legal personality. This idea refers to the capacity for an entity to be recognised by law as a bearer of duties and rights.[9]The aforementioned case of Yanner v Eaton serves as underlying authority for this concept and its application in the legal world. This concept matters due to the conventional state of environmental law and its ability to protect nature only so far as imposing duties on humans; thus, leaving ecological entities with no voice for themselves. The implication of legal subjectivity would mark the first real shift that recognises ecological entities beyond being a thing managed for human benefit.
- Legal rights
We have used the term “legal rights” quite a bit already, but what are they? Does the definition of a legal right bar any being outside the human race from obtaining them? Rights, as defined by the Parliamentary Education Office, are merely legal entitlements to do or to have something.[10]However, by interpreting and applying current environmental statutes we can see how they merely provide general protection for the environment, as opposed to conferring rights on the nature itself.
- Standing
To identify whether an entity has legal standing you must make an identification as to whether that entity is legally entitled to invoke the jurisdiction of a court.[11]This limb is what weighs heaviest adverse to the interests of an environmental voice. However, the implementation of the previous limbs will alleviate the weight that the environment’s lack of standing holds.
Lack of standing serves only as a bar to an environmental voice to the mass scale proposed. This wall has been proven to be breakable as was in the case of Onus v. Alcoa of Austl. Ltd., where the High Court held that standing may arise from cultural relationship or practical connection – even in the absence of ownership.[12]Unfortunately, this would still only limit the inference of rights upon cultural environmental entities. That does not mean it is not possible to extend this though. The use of an independent organisation that is permitted to litigate on behalf of environmental entities that have their rights breached would be an appropriate system.
- Guardianship
Guardianship is a legal mechanism that grants a person, institution, or any authorised party to protect and represent the interests and rights of an entity that is incapable of acting or communicating through ordinary legal processes.[13]This is most often seen in the Children’s Court, where a person can take legal action on the child’s behalf. A key principle of the Children’s Court is to act in the best interests of the child;[14] implementing this into environmental law would serve the exact same purpose. A body of environmental law experts that are expressly granted, through statute, the power to protect the rights and interests of ecological entities – a guardian.
- Representation
Now, environmental entities are obviously unable to physically appear in court to communicate; however, breaking through this barrier would not reinvent the wheel and do something that has never been done before. Every time a corporation sets foot into court, they do the same. These environmental entities would be able to exercise its legal capacity through an authorised representative – related or unrelated to the aforementioned guardian body – in the same way a corporation does through its officers and agents.[15]
B Australia’s Existing Framework and its Limits
- Fragmented environmental regulation
The situation of Australia’s current environmental framework is rather fragmented, in the sense that responsibility is distributed due to the division of powers – between the Commonwealth, States and Territories, and local governments. However, there is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC’) which applies nationally. This act is principally concerned with matters of national environmental significance; such as World Heritage properties, listed threatened species and ecological communities, migratory species, Ramsar wetlands, Commonwealth marine areas, and certain water resources.[16]
The act tells us that it is not an environmental code. It merely acts as a project-specific referral and requiring certain boxes to be checked on proposed actions that are likely to have a significant impact on a protected matter.[17]As a result, the Act becomes too inconsistent with the broader regulation implemented by States and Territories, leading to overlapping and duplication. Although agreements and arrangements between governments seek to reduce the duplication, the framework is still “duplicative, inefficient, and costly” as opposed to implementing a stronger system. [18]
- Administrative discretion
Environmental protection based on Australia’s current legal framework is further limited by the extend to which it relies upon administrative discretion. Under the EPBC Act, the Minister decides whether to approve a proposed action and can also attach conditions to the approach under ss 133-134.[19]It has been emphasised by Griffiths J in Austl. Conservation Found. Inc. v. Minister for the Env’t. that judicial review is not concerned with the merits of the Minister’s decisions, merely the legality of it.[20]Thus, the ultimate evaluative judgment remains an executive and meritless one.
- Enforcement difficulties
Another area of Australia’s existing framework that serves as a limitation is persistent enforcement difficulties. In relation to the enforcement of the EPBC Act, it is often dubbed an “enforcement pyramid” due to education and warnings being used for the majority of contraventions and some serious breaches attracting injunctions or remediation orders.[21]This model is exactly what causes enforcement difficulties to arise. The availability of serious sanctions does not guarantee that they will be often used and often are not used enough to deter contraveners. In addition, compliance with the EPBC Act will depend heavily on the priorities of executives and resourcing available to them.
E The Working Australian Model
This article proposes that a working Australian model would combine a Universal Declaration of Environmental Rights (‘UDER’) with entity-specific legislation. The UDER would set the legal baseline, while courts would apply the rights to the facts on a case-by-case basis.
- Qualification of Ecologies Entities & the Rights and Interests They Would Hold
If an entity is an animal or being capable of having an identifiable ecological integrity; including rivers, wetlands, aquifers, and reefs; the UDER should apply to them. Each entity should be granted substantive rights to exist, regenerate, persist, maintain integrity, and perform its essential ecological functions. This approach would build on the recognition of Birrarung as a ‘living and integrated natural entity’, while making up for the absence of rights in the Birrarung Act. Similar to any piece of legislation, exceptions will apply. While this article can not go into all the exception possibilities, the most notable one would be if the breach of the right is reasonable and necessary for human development (such as food).
- Who Would Represent Them?
Environmental entities should be provided with an independent body or organisation to act as an Environmental Guardian of their rights. The composition of the independent body should consist of qualified ecological scientists, environmental lawyers, traditional owners of cultural entities, and an independent public-interest member. The duty of the guardian should be owed primarily to the entity as opposed to the Minister who appoints it. The functions of the body should include the representation of the entity in proceedings, approval participation, and monitoring compliance.
- Whether There Would be Independent Standing
Statutory standing should be conferred on recognised ecological entities through the UDER, exercisable via the guardian. This would allow the proceedings to be brought in the entity’s name as opposed to an applicant having to establish a personal or special interest. This highlights the flaw identified in Austl. Conservation Found. Inc. v. Commonwealth, where general environmental concern, of itself, was not sufficient to establish standing.[22]To prevent an overflow of allegations, the guardian must still establish – on the balance of probabilities – that the impugned conduct threatens an ecological right and the defendant is legally responsible for that harm.
- What Remedies Would be Available?
In relation to remedial jurisdiction, courts should be granted a broad discretion. This would include interlocutory and final injunctions, remediation costs, compensation, and remedies of the like. Like most causes of action, the remedies should be tailored to the condition of the entity after the breach compared to before, the intention of the defendant, and the weight of the evidence. However, the court should also use expert evidence, monitoring requirements, and staged compliance orders to ensure they do not impose unrealistic scientific orders.
III Conclusion
In conclusion, Australia’s current framework for environmental law is still strong, yet it is not perfect – when it is something as serious as our planet, perfection is what we should strive for. Australia, like majority of the world, has continued to hold the popular view that entities of the environment are not legal persons, instead property. Australia just needs to push just that slight bit more until the realisation hits that a stronger and more environmentally friendly system is waiting just around the corner.
This article has proposed the framework of that system to be built on a Universal Declaration of Environmental Rights and if it works for humans, why would it not for nature? Supporting enactments such as a guardian, annual spending reports, and judicial review will provide checks and balances to ensure that there is no misconduct and the rights of our environment are at the forefront of the change. Ultimately, the environment is what we live for. The development of cities, farming, and policy making is what keeps us living; however, it is the environment that sits at the end of those roads. The vacations we work for, the sights we see, the places we go, the things we experience – those are what motivate us to keep living.
Bibliography
A Articles/Books/Reports
Parliamentary Educ. Off., Rights in Australia. https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/rights-in-australia
Erin O’Donnell, Michaelle Maloney & Christine Parker, New Developments in the Legal Status of Rivers (Workshop Rep., Univ. of Melb., Aug. 11, 2017)
Lidia C. Pecharroman, Rights of Nature: Rivers That Can Stand in Court, 7(1) Resources (2018)
Brian J. Preston, The Environment and its Influence on the Law, 82 Austl. L.J.180 (2008)
Graeme Samuel, Independent Review of the EPBC Act: Final Report (Rep., Dep’t of Agric., Water & Env’t, Oct. 2020)
Senate Environment, Communications, Information Tech. & the Arts Ref. Comm., Parliament of Austl., Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
B Cases
Austl. Conservation Found. Inc v. Commonwealth (1980) 146 CLR 493
Austl. Conservation Found. Inc v. Minister for the Environment, [FCA] 1042
Goddard Elliot v. Fritsch, [2012] VSC 87
Haughton v. Minister for Planning, [2011] NSWLEC 217
Onus v. Alcoa of Austl. Ltd. (1981) 149 CLR 27
Trevorrow v South Austl. (2007) 98 SASR 136
X & Y (By her tutor X) v. Pal & Ors. (1991) 23 NSWLR 26
Yanner v. Eaton (1999) 201 CLR 351
C Legislation
Children, Youth and Families Act 2005 (Vic)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
[1] Brian J. Preston, The Environment and its Influence on the Law, 82 Austl. L.J, 180 (2008), 181 (The Environment and its Influence on the Law).
[2] Yanner v. Eaton (Yanner) (1999) 201 CLR 351.
[3] Preston, The Environment and its Influence on the Law (n 1) 181.
[4] Austl. Conservation Found. Inc v. Commonwealth (1980) 146 CLR 493 (ACFI).
[5] Preston, The Environment and its Influence on the Law (n 1) 190.
[6] Goddard Elliot v. Fritsch [2012] VSC 87 [545].
[7] Id. [546].
[8] X & Y (By her tutor X) v. Pal & Ors. (1991) 23 NSWLR 26.
[9] Yanner (n 2).
[10] Parliamentary Educ. Off., Rights in Australia, Parliament of Australia, https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/rights-in-australia.
[11] Haughton v. Minister for Planning [2011] NSWLEC 217 [64].
[12] (1981) 149 CLR 27.
[13] Trevorrow v. South Austl. (2007) 98 SASR 136 [447].
[14] Children, Youth and Families Act 2005 (Vic) § 10(1).
[15] Lidia Cano Pecharromán, Rights of Nature: Rivers That Can Stand in Court, 7(1) Resources 13 (2018).
[16] Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
[17] Graeme Samuel, Independent Review of the EPBC Act: Final Report (Rep., Dep’t of Agric., Water & Env’t, Oct. 2020) (Independent Review of the EPBC Act).
[18] Samuel, Independent Review of the EPBC Act (n 17) 96.
[19] EPBC Act ss 133-34.
[20] [FCA] 1042 [3].
[21] Senate Environment, Communications, Information Tech. & the Arts Ref. Comm., Parliament of Austl., Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
[22] ACFI (n 4).
