Joy, Martin --- "Australian Environmental Law by D E Fisher" [2003] DeakinLawRw 10; (2003) 8(1) Deakin Law Review 199

BOOK REVIEWS

Australian Environmental Law by D E Fisher (Law Book Company, Sydney, 2002) 464pp, Price $89.10 (softcover). ISBN 0 455 218 471

Martin Joy[*]

As new challenges and issues arise in our society, we invariably turn to legal instruments to attempt to fashion solutions. Perhapssome of the more interesting challenges and issues which the law has had to deal with over the last thirty or so years are those arising from the damage which human civilisation has caused to the environment. The ecological crisis has caused seismic shifts in intellectual thinking across a range of disciplines, from biology to ethics to economics. Legal scholarship, law making and judicial interpretation have been part of this shift, forced to undertake new conceptual directions in legal thinking.

As with any new field of legal development, the law has been challenged in addressing environmental problems. This has been due to a variety of factors. Scientific uncertainty has meant that the nature and extent of environmental problems has often been unknown. When identified, such problems often don’t conform to neat jurisdictional boundaries. Even when the problem is localised, it has become clear - with increasing scientific understanding - that it is sometimes impossible to neatly dissect environmental issues for the purposes of legal regulation; the very nature of ecology means that ostensibly disparate issues are related, requiring a holistic approach. Compounding these epistemological problems has been the fact that the exercise of extending legal (and ontologically, ethical) consideration to the environment has been problematic due to the competing demands placed upon it by different sections of society. What has become apparent is that consideration of the environment in and of itself as something which is worthwhile to protect needs to be at the heart of any legal consideration of the environment. To adequately deal with environmental problems, scholars, law makers and the judiciary have had to think novelly about legal instruments to adapt them to the unique problems which the ecological crisis poses.

Because of these challenges, the development of environmental law has been complex, often piecemeal, and has forever encountered political, ethical, scientific and conceptual difficulties. The resultant body of law collected under the rubric of ‘environmental law’ can be considered to be a matrix, reflecting differing ethics, differing levels of law, differing issues and differing instruments to achieve different results. This matrix extends from the international to the local level, from complex regulatory frameworks to broad statements of rights and policies, from specific issues to global problems requiring global holistic solutions, and from simple policy goals to complex exercises seeking to achieve potentially massive shifts in the way society operates.

D E Fisher’s book Australian Environmental Law attempts to analytically survey thismatrix, commencing with a first principles consideration of the fundamentals of extending ethical consideration (a precondition for legal consideration) to the environment. From this crucial starting point he takes us through the fundamental framework of the law as it relates to the environment, the type of legal instruments which are at our disposal, up to the core objectives which environmental law is attempting to achieve. This is clearly an ambitious task, given the breadth and proliferation of legal instruments in recent years, but one which is essential if a coherent direction is to be given to tackling environmental problems with the instruments which the law supplies us. The book, therefore, is not a practitioner’s reference, nor a student’s exam resource. Rather, it is a coherent, analytical look at this matrix, focusing particularly, though not exclusively, on Australia, and perhaps indicating how it could develop in the future.

The text consists of twelve chapters in all, extending from the ontological basis of environmental consideration and the nature of law, through to the instruments which the law offers, and the ends to which those instruments may be put.

The first chapter considers the nature of environmental law, examining the very meaning of this growing body of international and domestic instruments and judicial commentary. This consideration goes through a first principles analysis of what the environment and the law, as abstract concepts, respectively comprise. Fisher then considers, very briefly, how spheres of jurisdiction have responded, considering the incorporation of environmental concern within international, overseas and Australian law.

The second chapter digs a little deeper into the fundamentals of environmental consideration. The ethical value of the environment is a novel area of concern. Historically, religious interpretation of the environment, at least in the Judaeo-Christian world, has placed humanity squarely in a position of domination to our natural surroundings, giving humans ethical primacy over the environment. The ecological crisis, and perhaps also the decline of the centrality of religion and the corresponding rise in ‘rights’ based ethical systems, has meant that we have needed to rethink our ethical relationship to nature. Fisher efficiently maps this out as an ethical context for legal development. There is a fundamental difference between a legal instrument which assigns the environment a derivative role to humanity, and one which protects the environment per se, for its own values. Fisher provides some good illustrations of this distinction.

The next chapter considers international law, which has often been the frontrunner for developments in the legal consideration of the environment. As Fisher points out however, the ability of international law to adequately deal with the environment has been constrained by the principle of sovereignty. This tension reflects the fundamental nature of the ecological crisis; the interconnectedness of the environment and the need for states to co-operate to deal adequately with the majority of environmental problems. Fisher gives some short appraisals of salient international instruments and demonstrates how international law has attempted to come to grips with environmental problems.

The fourth chapter considers constitutional law, and how the environment is dealt with at a foundational level within domestic jurisdictions. This involves quickly surveying various constitutions to demonstrate the varying ways, and the extent to which, the environment has been considered in establishing the framework of governments and the conferring of rights upon citizens. Fisher then considers Australia’s constitution, analysing the delineation of power in our federal system in relation to the environment. Again, this is brief and more contextual than substantive.

The fifth chapter is essentially an extension of the previous two chapters and gives short, cross-jurisdictional examples of domestic initiatives towards adopting ‘charters’ on the environment. At heart, these charters concern the values which should be adopted in developing environmental law. The effect of these charters varies from having a substantive effect on the rights, powers and duties of individuals, organisations and executive agencies, to simply expressing general ideas. Developments within Australia, such as the expression of values, like the precautionary principle and inter-generational equity are highlighted, as expressed by various statutes.

The purpose of these initial chapters is essentially contextual. The proceeding analytical half of the text, focusing principally on Australia, commences with chapter six where Fisher analyses the type of instruments which are available in influencing behaviour in relation to the environment. There are several categories of regulatory instrument: command and control regulation; voluntarism; education and information strategies; economic instruments; and, free market environmentalism. Some of these require little law at all to be implemented. Within most however, the concepts of duty, responsibility and property are central. Fisher analyses these instruments and concepts and explains how they are used to achieve environmental ends. The centrality and nature of property are highlighted, and some case law given, and a detailed explanation of how duties and responsibilities are structured and implemented is offered. This discussion thus sets out how regulation can be constructed to achieve particular ends.

The subsequent chapters then deal with what those particular ends are within the context of environmental law, namely: resource development; environmental protection; environmental conservation; and, ecologically sustainable development. Each chapter runs through the respective Australian states, drawing the principal example (plus any relevant judicial comment) from each jurisdiction to discuss a particular concept. Resource development, for example, considers land allocation; forestry resources; and energy resources. Consistent with the overall purpose of the book, the examples are discussed briefly and with a view to drawing out key themes which run through the jurisdictions on particular topics. This comparative approach is interesting, as it highlights the scope and breadth of what is possible in relation to each concept, as exemplified by each state, which seems to have taken a slightly different approach to each topic. The lack of legislation in relation to ecologically sustainable development sits in stark contrast to the preceding three chapter topics. This reflects the fact that, although ‘sustainable development is the foundation of environmental law in Australia’, it is difficult to transpose the concept into a clear regime of duties and liabilities.

The penultimate chapter deals with environmental planning which encompasses administrative actions to formulate specific plans and strategies aimed at achieving environmental objectives. This chapter considers the legislative frameworks under which assessment and planning occurs, again giving a cross-jurisdictional perspective across Australia. The issues dealt with include strategic planning, such as those undertaken by the Commonwealth Resource Assessment Commission and ad hoc planning such as that achieved by the Ranger uranium public inquiry. The other two topics discussed in this chapter are planning for public, and private, resource development.

Public resource development refers to the actions of government agencies to achieve the objectives set out in statutory frameworks with reference to particular environmental goals relating to aspects of the environment. In contrast, private resource management refers to the regulation of specific private projects and the need to ensure these conform to any environmental objectives. The first way by which this is achieved is environmental impact assessment processes, and Fisher gives several examples of assessment requirements. The second way is through ‘physical planning’, by which Fisher means planning schemes. These have substantial impact upon the freedom of individuals to develop land over which they have control and, as such, have been at the forefront of localised attempts to control resource development.

The last chapter looks at enforcement - initially considering how each objective is supported by enforcement instruments such as orders, notices and fines - again from a cross-jurisdictional perspective where appropriate. This section is largely descriptive, addressing the types and objectives of each instrument. Of course, these types of enforcement instruments are designed to achieve compliance on the part of private parties with environmental law provisions. Enforcement of public duties is the ambit of administrative law. What has been problematic in this area of environmental law is the notion of standing, and who has sufficient interest to bring an action seeking the enforcement of a duty towards the environment. Fisher gives a quick overview of the judicial developments in this area.

The text as whole gives the impression of a comprehensive consideration of the matrix of environmental law. It provides an important analytical and comparative perspective of legal developments in relation to the environment. It is not, however, a detailed reference text for the practitioner, nor the scholar. And as with any literature which restricts itself to commentary at this level, the reader is often left wanting more; often sections are too brief. This, however, is a limited criticism, as this was obviously not the intent of the text. Rather, this text’s most important contribution is that it places environmental law within a context of objectives, thus giving perspective, by introducing the reader to the ontology of environmental concern, and thus environmental law.

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[*] BA(Hons), LLB(Hons)(Mon); Articled Clerk, Mallesons Stephen Jaques, Melbourne. The views expressed in this book review do not reflect those of Mallesons Stephen Jaques.