The development of public participation in environmental protection and planning law in Australia

Environmental and Planning Law Journal

Volumn 13, Issue 4, 1996, Pages 260-268

  Taberner, John ^a   Brunton, Nicholas ^a   Mather, Lisa ^a  

^a Freehill Hollingdale and Page   (Australia)

Author keywords

[No Author keywords available]

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EID: 33646250704     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (90)

1. See, eg, P J Sands, "The Environment, Community and International Law" (1989) 30 Harvard International Law Journal 393.
2. See F V Garcia-Amador, The Changing Law of International Claims (1974),
3. See GA Res 1803, GA Res 2158, GA Res 2692.
4. UN Doc A/Res/3016 15 Jan 1973.
5. "States have, in accordance with the Charter of the United Nations and the principles of international law the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdictions or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction".
6. During the highly polarised negotiations on the Rio Declaration on the Environment, developing countries succeeded in restating the language of Principle 21 of the Stockholm Declaration as Principle 2 of the Rio Declaration with the following amendment aimed at protecting sovereignty: "States have, in accordance with the Charter of the United Nations and the principles of international law the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdictions or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction".
7. Advisory Opinion, Tunis-Morocco Nationality Decrees [1923] PCIL Ser B N4, 24.
8. Similarly, the OAS Charter bound its members to "[reaffirm] the fundamental rights of the individual without distinction as to race, nationality, creed or sex": Organisation of American States Charter, Art 5.
9. UN Charter, Art 55.
10. UN Charter, Art 2.
11. UN Charter, Art 56.
12. Universal Declaration of Human Rights, GA Res 217 (III)A, at 72. See also American Declaration of the Rights and Duties of Man, OAS Res XXX (1948): "the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon the attributes of his human personality", therefore deserving of international protection.
13. See I M Porras, "The Rio Declaration: A New Basis for International Cooperation" (1992) 1 Rev EC Inti & Envtl L 245 at 251.
14. Already, as a practical matter, States have increasing difficulties hiding behind the walls of sovereignty in order to deplete natural resources. This is illustrated by the recent conflict between Canada and the European Union over fishing of turbot in the North Atlantic.
15. "Global governance" was the particular inquiry of the Commission of Global Governance (CGG). The CGG originated in meetings in 1989 of members of the former UN commissions on: Environment and Development; International Development; and Disarmament and Security. The CGG was established in 1992, and its November 1994 report Our Global Neighbourhood (1995) (p xvi) was at pains to distinguish the concept of "global governance" from "global government". The report recognised that, despite the calls for strong global governance in relation to environmental issues found at UNCED, there was a lack of overall direction in the legal, intellectual and institutional groundwork for the achievement of sustainable development (p 216). It recommended the establishment of an Economic Security Council, structured similarly to the Security Council, "to promote stable, balanced and sustainable development" (P 342).
16. See A Poglione, "A More Efficient International Law on the Environment and Setting up an International Court for the Environment within the United Nations" (1990) 20 Environmental Law 321
17. If the covenant becomes a treaty, it will cast very significant obligations on all signatories. The following concepts are recognised under the covenant's general obligations: the integration of environment and development, the transfer or transformation of environmental harm, and the prevention of and responses to emergencies: Arts 13-15. The covenant includes obligations relating to specific processes and activities (including pollution, waste, and alien or modified organisms) as well as obligations relating to global issues: Arts 23-26. Particular articles are also included on consumption patterns, eradication of poverty, trade and environment, and information on the impact of economic activities of foreign origin: Arts 27-32. The covenant includes detailed articles relating to implementation and co-operation (including environmental standards, information sharing and public awareness): Arts 35-46.
18. Draft International Covenant on the Environment and Development, Art 3.
19. Draft International Covenant on the Environment and Development, Art 3.
20. see E de Wit, "Enforcement Rights of Individual Citizens in Australian Environmental & Planning Legislation" in Defending the Environment, conference papers (1995), p 145.
21. See P Wensley, "Global Trends: the Emergence of International Environmental Law", in B Boer, R Fowler and N Gunningham (eds), Environmental Outlook (Federation Press, Sydney, 1994), p 11. NGOs such as Greenpeace, Friends of the Earth and the World Wide Fund for Nature have an established history of identifying areas of environmental concern, lobbying governments to implement environmental protection measures, and exposing breaches of environmental laws.
22. P Allott, "Power Sharing and the Law of the Sea" (1983) 77 AJIL 1 at 27.
23. The Montreal Protocol on Substances that Deplete the Ozone Layer (26 ILM 1550) is a showcase example of how an international initiative has provided strong impetus for action to be taken by an overwhelming majority of states to extensively regulate the use of ozone depleting substances within their boundaries.
24. See, eg, s 10, Environment Protection Act 1993 (SA), Sched 1
25. T Rohde, "The Objects Clause in Environmental Legislation" (1995) 12 EPLJ 80.
26. The term "public participation" is employed in a number of differing contexts with slightly different meanings. Some commentators draw a distinction between "public" and "community participation". See eg, V Brown, "Community Consultation as Dispute Resolution: The, or Us, Weak or Strong, Conservative or Creative", paper prepared for Defending the Environment Conference, Adelaide, 1995. The term "community participation" generally denotes input from non-commercial, non-professional and non-political interested parties whereas the term "public participation" refers to input from commercial, professional, political as well as other interested groups. The term "public participation" is used in this article and by that term the authors include both of these meanings.
27. See, eg, cl I (c), Sched 1, Land Use Planning and Approvals Act 1993 (Tas); s 5(c)
28. See Environment Protection Act 1993 (SA)
29. Environmental Protection Act 1994 (Qld).
30. Section 10(l)(ix), Environment Protection Act 1993 (SA)
31. Section 5, Environmental Protection Act 1994 (Qld)
32. Section 6, Environmental Protection Act 1994 (Qld).
33. See, eg, the Environment Protection Advisory Forum established under Div 2 of the Environment Protection Act 1993 (SA) and the State and three regional community consultation forums established under s 24
34. See the Environmental Education Committee established under ss 26-28, Protection of the Environment Administration Act 1991 (NSW).
35. See, eg, s 5(1), Subordinate Legislation Act 1989 (NSW) where a regulatory impact statement must be prepared, advertised, submissions can be made and those submissions must be considered.
36. See also Subordinate Legislation Act 1994 (Vic). In addition, a regulatory impact statement must be prepared as part of the process for developing National Environment Protection Measures under the National Environment Protection Council legislation which has now been enacted across all Australian jurisdictions except Western Australia, where it is expected that a National Environment Protection Council Act will be enacted in the Autumn 1996 sitting of the West Australian Parliament.
37. See, eg, the discussion on the history of public participation in planning Victoria in M Raff, "Pragmatic Curtailment of Participation in Planning in Victoria" (1995) 12 EPLJ 73.
38. Section 16, Environment Protection Act 1970 (Vic); s 27, Environmental Protection Act 1986 (WA); s 8
39. See ss 1 8a-d, Environment Protection Act 1970 (Vic).
40. Section 26, Environmental Protection Act 1994 (Qld).
41. Section 32, Environmental Protection Act 1993 (Qld).
42. Section 28(6)(d), Environment Protection Act 1993 (SA).
43. In South Australia, the relevant authority is the EPA, in Queensland it is the administering authority, which is the relevant local council in respect of level 2 environmentally relevant activities (the administration of which has been delegated to local councils. For level 1 environmentally relevant activities, the administering authority is the Queensland Department of Environment and Heritage). In Tasmania, the register must be kept by the Board of Environmental Management and Pollution Control.
44. Section 109, Environment Protection Act 1993 (SA); s 213
45. Section 109(5) & (6), Environment Protection Act 1993 (SA); s 214
46. Environmental Protection Act 1994 (Qld); s 22(2)
47. Environmental Management and Pollution Control Act 1994 (Tas).
48. Section 214(2)(b), Environmental Protection A ct 1994 (Qld).
49. Section 218, Environmental Protection Act 1994 (Qld); s 291
50. State Policies and Projects Act 1993 (Tas); s 10
51. Protection of the Environment Administration Act 1991 (NSW).
52. Section 39(1), Environment Protection Act 1993 (SA); s42
53. Environmental Protection Act 1994 (Qld); s 19β(3)(b)(iv)
54. Environment Protection Act 1970 (Vic). In South Australia, Western Australia and Victoria the legislation provides for the granting of works approvals which are the equivalent of pollution control approvals under the Pollution Control Act 1970 (NSW). In Queensland, the Environmental Protection Act 1994 (Qld) only provides for licences (for level 1 environmentally relevant activities) and approvals (for level 2 environmentally relevant activities). In Tasmania, the planning and environmental processes are integrated with permits issued by local councils for level 1 and 2 activities subject to environmental assessment, if required, by the Board of Environmental Management under the Land Use Planning and Approvals Act 1993 (Tas) and level 1 activities are assessed by the Sustainable Development Advisory Council under the State Policies and Projects Act 1993 (Tas).
55. Section 54(2)(b), Environmental Protection Act 1986 (WA).
56. Section 57, Land Use Planning and Approvals Act 1993 (Tas).
57. Section 23, State Policies and Projects Act 1993 (Tas).
58. Section 47(1)(h), Environment Protection Act 1993 (SA).
59. Section 45, Environmental Protection Act 1994 (Qld).
60. Section 42, Environmental Protection Act 1994 (Qld).
61. Section 45(1)(d), Environmental Protection Act 1994 (Qld).
62. Section 85, Environmental Protection Act 1994 (Qld). Environmental management plans cover a period of three years during which the programme is to be carried out.
63. Section 87, Environmental Protection Act 1994 (Qld).
64. See s 17m, Pollution Control Act 1970 (NSW); s 106
65. Environment Protection Act 1993 (SA).
66. However, it can be expected that increased public participation provisions (including public rights of appeal) will be an important feature of second stage of New South Wales environment protection, which is expected to be introduced into Parliament in 1996.
67. Section 202, Environmental Protection Act 1994 (Qld).
68. Section 202(7), Environmental Protection Act 1994 (Qld).
69. Section 202(12), Environmental Protection Act 1994 (Qld).
70. Section 206, Environmental Protection Act 1994 (Qld).
71. Section 209(2), Environmental Protection Act 1994 (Qld).
72. Section 33b, Environment Protection Act 1970 (Vic).
73. Section 102(3), Environmental Protection Act 1986 (WA).
74. Section 106, Environmental Protection Act 1986 (WA).
75. Section 107, Environmental Protection Act 1986 (WA).
76. Section 100, Environmental Protection Act 1986 (WA).
77. Section 61(5), Land Use Planning and Approvals Act 1993 (Tas).
78. Section 25(1), Environmental Offences and Penalties Act 1989 (NSW).
79. Section 25(1), Environmental Offences and Penalties Act 1989 (NSW).
80. Sections 13(1), 13(2a), Environmental Offences and Penalties Act 1989 (NSW).
81. Section 64, Land Use Planning and Approvals Act 1993 (Tas); s 48
82. Environmental Management and Pollution Control Act 1994 (Tas).
83. Section 104, Environment Protection Act 1993 (SA).
84. Section 104(7)(b), (c), Environment Protection Act 1993 (SA).
85. Section 104(8), Environment Protection Act 1993 (SA).
86. Section 194, Environmental Protection Act 1994 (Qld).
87. Section 194(2), Environmental Protection Act 1994 (Qld).
88. M Tsamenyi, "The Domestic Consequences of International Environmental Imperatives" in P Alston and M Chiam (eds), Treaty Making and Australia: Globalisation versus Sovereignty (Federation Press, Sydney, 1995), p 173.
89. Trade practices law and consumer protection law, as evidenced through the establishment of the new World Trade Organisation, the successful conclusion of the General Agreement on Tariffs and Trade and the activities of the Australian Consumers' Association, are obvious examples.
90. For example, recent changes to Australian environmental laws typically impose maximum criminal penalties of up to SI million for pollution offences and provide for a wide range of ancillary orders that can be imposed on the polluter, including orders to rectify the damage, pay exemplary damages, and orders which freeze assets. As well, owners and occupiers of property can be strictly liable for environmental damage.