Impact Dec04

IMPACT Public interest environmental law No 76 December 2004 The Precautionary Principle and the Public Quarterly Journal of the Interest National Environmental Defender’s Office Network Jeff Smith, Director, EDO New South Wales Australian Capital Territory New South Wales This article is based on a paper prepared policies pertaining to the precautionary Northern Territory for a conference entitled ‘The principle reveals a number of interrelated North Queensland Precuationary Principle in strands.6 Queensland Environmental Regulation’, hosted by South Australia the Australian Centre for Environmental Tasmania 1) The classic principle Victoria Law. Western Australia This version states that full scientific cer- Part One: Introduction tainty should not be used as a reason for Website: www.edo.org.au postponing a measure to prevent degra- Public interest environmental law in dation of the environment where there are CONTENTS Australia has continued to evolve threats of serious or irreversible environ- remarkably in the last ten years since mental damage. This is the definition used 4 EDO Network Conference Justice Stein’s seminal judgement in under the Environment Protection and Leatch.1 In contrast, the application of Biodiversity Conservation Act 1999 (sec- 7 EDO Network 20th the precautionary principle in New South tion 391(2)). It is less common, however, Anniversary Wales has not moved forward since this than its classic status might suggest. 9 Case Update: Protecting seminal case. Rather, it is the classic formulation by vir- Whales in the Australian tue of being a shorthand way of referring Whale Sanctuary On the one hand, legislation is poor, to the principle. contradictory and uncertain, as noted by 9 Court Rejects Appeal for others.2 On the other hand, NSW case In Leatch, Stein J took this starting point Environmenal Flows in NSW law has not moved the principle forward and described the precautionary princi- and arguably it has gone backwards. This ple as a ‘statement of common sense’. He 10 Gunns Sues failure is seen as symptomatic of a wider Environmentalists continued: malaise within the Court, namely, a failure 10 Coogee Coastal Action in large part to develop a specialist It is directed towards the prevention of Coalition in WA Court of environmental jurisprudence. serious or irreversible harm to the envi- Appeal ronment in situations of scientific uncer- Part Two: What is the precautionary tainty. Its premise is that where uncer- 11 Group Denied Standing in principle? tainty exists concerning the nature or Airport Land Clearing Appeal scope of environmental harm (whether Many commentators have traced the this follows from policies, decisions or ac- 11 Qld Biodiscovery Legislation development of the precautionary Commences Operation tivities), decision makers should be cau- principle back to concepts in the German tious. socio-legal tradition and Swedish 12 New Marine Parks environmental laws and policies, 3 Legislation for Queensland His Honour then considered relevant pro- through its employment internationally4 visions of the National Parks and Wild- 5 12 Case Update: Mackay and thence into domestic laws. It is not life Act 1974 (NSW) and concluded that the purpose of this paper to revisit this these were aimed at the preservation and 12 New Commonwealth Zoning history. Rather, this part seeks to tease protection of endangered fauna. He ob- Plan for Great Barrier Reef out the different strands of the served that although the precautionary precautionary principle, based on an principle is not expressly stated, the cau- 12 EDO Network News appreciation of the ambiguity of the term. tious approach it suggests is ‘clearly con- Published by Environmental Defender’s Office (NSW) Level 9, 89 York St Sydney 2000 sistent with the subject matter, scope and Ph: 02 9262 6989 Fax: 02 9262 6998 A review of the literature, international Email: [email protected] purpose of the Act.’ ABN: 72 002 880 864 ISSN: 1030-3847 instruments, case law, legislation and Printed on recycled paper Based on a lack of information about irreversible damage to the precautionary principle. I do not think the Giant Burrowing Frog (and con- environment, and that I do any injustice to what Stein J sequently about the impact of the pro- had to say about the precautionary posed road on the survival of the (ii) an assessment of the risk-weighted principle in Leatch v National Parks Frog), His Honour concluded: consequences of various options, and Wildlife Service & Anor (1993) 81 LGERA 270 when I reiterate what Application of the precautionary prin- This definition is in turn derived from I said in Nicholls v Director General cipleKane appears Granville, to me toVolunteer, be most apt EDO in a Newthe South Intergovernmental Wales Agreement on of National Parks and Wildlife & Ors situation of a scarcity of scientific the Environment 1992.7 (1994) 84 LGERA 397 to the effect knowledge of species population, that the precautionary principle adds habitat and impacts. Indeed, one per- 3) The “caution” principle nothing to the consideration that the missible approach is to conclude that Court undertakes by applying common the state of knowledge is such that one Contrary to the classic approach in sense. It is obvious that where should not grant a licence to ‘take or Leatch, this conception conflates development involves the handling and kill’ the species until much more is precaution with caution, rendering processing of materials which have the known. obsolete the distinction between potential to cause significant harm to precautionary action and preventative the health of human beings and Stein J uses the language of common action. In other words, nothing more vegetation, extreme caution must be sense and caution and the need to “take than caution or common sense are used in determining whether a hard look” in applying the required. development consent will be precautionary principle. This is much forthcoming.12 more than simply using common The case of Nicholls v Director- sense and caution General of National Parks and Such an approach leaves no room for Wildlife Service8 and Alumino (Aust) the independent application of the 2) The guiding principle Pty Ltd v Minister Administering the precautionary principle. As was said Environmental Planning and in the Queensland case of CSR v In NSW, the definition of ecologically Assessment Act 19799 exemplifies this Caboolture Shire Council [2001] sustainable development (ESD) is approach. Whilst apparently accepting QPELR 398, the precautionary found under the Protection of the the “common sense” approach principle did not depart in any Environment Administration Act 1991. adopted by Stein J in Leatch,10 Talbot important way from the approach Section 6 provides, amongst other J seemed unsympathetic to the conventionally taken by decision- things, that the objectives of the principle in Nicholls. In fact, the makers. 13 Environment Protection Authority are: conclusion reached more readily exposes the difficulties inherent in a As Nagorcka has argued (a) to protect, restore and enhance the “common sense” approach: quality of the environment in New Instead of “precautionary” and South Wales, having regard to the need while [the precautionary principle] focused on warding off a possible evil to maintain ecologically sustainable may be framed appropriately for the beforehand, it becomes merely development… purpose of a political aspiration, its “cautionary” that is engaged in implementation as a legal standard employing prudence in regard to a One of the elements of ecologically could have the potential to create known evil. Australian and sustainable development, as defined in interminable forensic argument. Taken international documents have conflated the Act, is literally in practice it might prove to these two ideas. be unworkable. Even the applicant (a) the precautionary principle— concedes that scientific certainty is 4) The qualified principle namely, that if there are threats of essentially impossible. It is only 500 serious or irreversible environmental years ago that most scientists were International examples of a qualified damage, lack of full scientific certainty convinced the world was flat. The approach to the principle are to be should not be used as a reason for controversy in this matter further found under both the Rio Declaration postponing measures to prevent demonstrates that all is not yet 1992 and the Climate Change environmental degradation. In the settled.11 Convention 1992, which provide application of the precautionary principle, public and private decisions In Alumino Justice Talbot seemed to In order to protect the environment, should be guided by: effectively undercut the approach the precautionary approach shall be taken in applying the precautionary widely applied by States according to (i) careful evaluation to avoid, principle in Leatch. His Honour noted: their capabilities. Where there are wherever practicable, serious or threats of serious or irreversible dam- Miss Murrell, in her final address, age, lack of full scientific certainty placed considerable emphasis upon the shall not be used as a reason for 2 Impact No 76 - December 2004 application of the so-called postponing cost-effective measures to prevent environmental degradation resolutions to suspend dumping of both the objects and criteria for (Principle 15, Rio Declaration) low-level radioactive waste at sea exercising functions deal with ESD without the prior approval of parties differently. Where there are threats of

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