Acceptance of the precautionary principle - Australian v international decision-makers

Environmental and Planning Law Journal

Volumn 18, Issue 4, 2001, Pages 395-409

  Wyman, Lisa ^a,b  

^a UNIVERSITY OF QUEENSLAND   (Australia)

^b NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0000513673     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (82)

1. The Hon Justice Paul L Stein, "Are Decision-makers too Cautious with the Precautionary Principle?" (2000) 17 EPLJ 3 at 21.
2. At the outset, it is important to note that regulation of an activity does not necessarily imply prohibition of that activity.
3. See The Australian, Monday 26 February 2001, at 1.
4. Property Law Act 1974 (Qld) s 4.
5. Numerous commentators have noted the problems associated with defining and applying the precautionary principle. Without purporting to constitute an exhaustive list, the problems relate to uncertainty as to: whether the principle entails an obligation, recommendation or some intermediate duty; what threshold of risk warrants the application of precautionary measures; what scientific evidence is necessary to link the activity to its alleged detrimental effects; whether to embrace a utilitarian version that gives a role to the economic costs of the measures; whether the required measures are envisaged as preventative or remedial in nature; whether application of the principle places the burden of proof onto the polluter to prove that his activities will not damage the environment; and what other procedural and substantive legal consequences follow.
6. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
7. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
8. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
9. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
10. See Forest Practices Board, Draft Forest Practices Code 2000, (, 2000).
11. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
12. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
13. Planning and Environment Act 1987 (Vic) s 47(2).
14. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
15. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
16. Planning and Environment Act 1987 (Vic) s 47(2).
17. Property Law Act 1974 (Qld) s 4.
18. As a preliminary jurisdictional argument, the applicant challenged the validity of the Fauna Impact Statement (FIS). Justice Stein took a very pragmatic approach to the provisions of the Act, determining the FIS to be legally adequate and dismissing the argument.
19. Planning and Environment Act 1987 (Vic) s 47(2).
20. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
21. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
22. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
23. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
24. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
25. Planning and Environment Act 1987 (Vic) s 47(2).
26. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
27. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
28. Planning and Environment Act 1987 (Vic) s 47(2).
29. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
30. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
31. Planning and Environment Act 1987 (Vic) s 47(2).
32. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
33. Planning and Environment Act 1987 (Vic) s 47(2).
34. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
35. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
36. Planning and Environment Act 1987 (Vic) s 47(2).
37. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
38. Planning and Environment Act 1987 (Vic) s 47(2).
39. His Honour cited Leatch and noted the adoption of the principle in environmental legislation, local government legislation and associated works.
40. Planning and Environment Act 1987 (Vic) s 47(2).
41. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
42. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
43. Planning and Environment Act 1987 (Vic) s 47(2).
44. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
45. Planning and Environment Act 1987 (Vic) s 47(2).
46. Given that the request was dismissed on jurisdictional grounds it might be argued that "silence" on the matter was the only appropriate majority response. Agreement or otherwise on this proposition is closely linked with one's personal view as to the proper role of international courts in determining a matter. In any event, accusations were leveled at the majority's reasoning and claims of abuse of judicial function were made.
47. Planning and Environment Act 1987 (Vic) s 47(2).
48. There have been suggestions that, in denying jurisdiction, the majority were in fact seeking to avoid a determination on the merits, which, in light of the factual circumstances and state of international law, would necessarily have held the conduct of France to be valid. In seeking to avoid such a result, it is argued that the majority legitimately had in mind the greater protection of international law and society.
49. Planning and Environment Act 1987 (Vic) s 47(2).
50. Property Law Act 1974 (Qld) s 4.
51. The Separate Opinion of Judge Weeramantry alluded to the matter, referring to the duty upon States to carry out continuing environmental impact assessments as a specific application of the larger general principle of caution.
52. Property Law Act 1974 (Qld) s 4.
53. See The Australian, Monday 26 February 2001, at 1.
54. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
55. Planning and Environment Act 1987 (Vic) s 47(2).
56. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
57. See The Australian, Monday 26 February 2001, at 1.
58. Property Law Act 1974 (Qld) s 4.
59. There is a basis for this view, particularly in the context of pre-existing agreements. Certainly, the references to the precautionary principle are not encouraging and the court's failure to properly address the importance of scientific knowledge to environmental management is damaging.
60. It is worth noting that in the Beef Hormones Decision (discussed below) the World Trade Organization Appellate Body took account of the "non-adoption" of the precautionary principle by the International Court of Justice in Gabcikovo.
61. B Homel, "Just a Process Change? The Impact of IDAS on Environmental Protection in Queensland", (1999) 16 EPLJ 75.
62. See The Australian, Monday 26 February 2001, at 1.
63. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
64. Pursuant to article 5 of the SPS Agreement. This requirement fell from the obligation to justify the measures upon sufficient scientific evidence.
65. See The Australian, Monday 26 February 2001, at 1.
66. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
67. Article 5.7 provides for the "provisional" application of measures in the face of scientific insufficiency with accompanying obligations to obtain the additional information and conduct a more objective risk assessment within a reasonable time.
68. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
69. Such as the sixth paragraph of the preamble and Article 3.3.
70. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
71. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
72. See Forest Practices Board, Draft Forest Practices Code 2000, (, 2000).
73. Property Law Act 1974 (Qld) s 4.
74. See Forest Practices Board, Draft Forest Practices Code 2000, (, 2000).
75. See further, M Raff "Ten Principles of Quality in Environmental Impact Assessment" 14 Environmental and Planning Law Journal 207.
76. Property Law Act 1974 (Qld) s 4.
77. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
78. Property Law Act 1974 (Qld) s 4.
79. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
80. Such factors include those as wide ranging as whether the relevant body is public policy orientated, a single or multimember body, bound by precedent, traditionally formalist in its jurisprudence or self-financed.
81. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm
82. J Butcher, "The US & EU Trade Dispute Over GMO Soybeans", (1997) Case Number: 446 www.american.edu/projects/mandala/TED/soybean.htm