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Benefits of Judicial Specialization in Environmental Law: the Land and Environment Court of New South Wales As a Case Study

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Benefits of Judicial Specialization in Environmental Law: the Land and Environment Court of New South Wales As a Case Study Pace Environmental Law Review Volume 29 Issue 2 Winter 2012 Environmental Courts and Tribunals: Improving Article 2 Access to Justice and Protection of the Environment Around the World January 2012 Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study Brian J. Preston Land and Environment Court of New South Wales, Australia Follow this and additional works at: https://digitalcommons.pace.edu/pelr Recommended Citation Brian J. Preston, Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study, 29 Pace Envtl. L. Rev. 396 (2012) Available at: https://digitalcommons.pace.edu/pelr/vol29/iss2/2 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Environmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. ARTICLE Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study BRIAN J. PRESTON* I. INTRODUCTION Environmental problems are polycentric and multidisciplinary. The first law of ecology is that everything is connected to everything else.1 The scale of environmental problems is such as to require a holistic solution. Environmental problems can have wide, even trans-boundary, impacts. Examples include climate change, forest fires, and hazardous waste. Tackling environmental problems involves implementing ecologically sustainable development. The original concept of sustainable development articulated in the Brundtland Report is “development that meets the needs of the present without compromising the ability of future generations to meet their own * Chief Judge of the Land and Environment Court of New South Wales, Australia. B.A., LLB Macquarie University (1982); Solicitor (1982 to 1987); Barrister (1987-2005). Appointed Senior Counsel of the Land and Environment Court in 1999; appointed Chief Judge in 2005. This article is an outgrowth and expansion of a speech given at the International Symposium on Environmental Courts and Tribunals, hosted by Pace Law School and the International Judicial Institute for Environmental Adjudication (IJIEA), on April 1, 2011, in White Plains, New York. 1. BARRY COMMONER, THE CLOSING CIRCLE: CONFRONTING THE ENVIRONMENTAL CRISIS 33 (1972). 396 1 2012] ENVIRONMENT COURT OF NEW SOUTH WALES 397 needs.”2 In Australia, the adjective “sustainable” is qualified by “ecologically” to emphasize the necessary integration of economy and environment.3 Ecologically sustainable development involves a cluster of elements or principles, including the principle of sustainable use; the principle of integration (of economic, social and environmental considerations in decision making); the precautionary principle; principles of equity, both inter- and intragenerational equity; the principle that the conservation of biological diversity and ecological integrity should be a fundamental consideration; and the principle of the internalization of environmental costs (in decision-making).4 The achievement of ecologically sustainable development depends on the commitment and involvement of all branches of government—the legislature, executive and judiciary—as well as other stakeholders. Klaus Toepfer, the then-Executive Director of the United Nations Environment Program (UNEP), stated in his message to the UNEP Global Judges Program: Success in tackling environmental degradation relies on the full participation of everyone in society. It is essential, therefore, to forge a global partnership among all relevant stakeholders for the protection of the environment based on the affirmation of the human values set out in the United Nations Millennium Declaration: freedom, equality, solidarity, tolerance, respect for nature and shared responsibility. The judiciary plays a key role in weaving these values into the fabric of our societies. The judiciary is also a crucial partner in promoting environmental governance, upholding the rule of law and in ensuring a fair balance between environmental, social and 2. U.N. Secretary-General, Report of the World Commission on Environment and Development: Our Common Future, 54, U.N. Doc. A/42/427, Annex I (Aug. 4, 1987). 3. GERRY BATES, ENVIRONMENTAL LAW IN AUSTRALIA 124 ¶ 5.15 (6th ed. 2006). 4. See generally Brian J. Preston, The Role of the Judiciary in Promoting Sustainable Development: the Experience of Asia and the Pacific, 9 ASIA PAC. J. ENVTL. L. 109 (2005); see also Brian J. Preston, Ecologically Sustainable Development in the Context of Contaminated Land, 25 ENVTL. & PLAN. L.J. 164 (2008). https://digitalcommons.pace.edu/pelr/vol29/iss2/2 2 398 PACE ENVIRONMENTAL LAW REVIEW [Vol. 29 developmental considerations through its judgements [sic] and declarations.5 The judiciary has a role to play in the interpretation, explanation and enforcement of laws and regulations. As Kaniaru, Kurukulasuriya and Okidi state: The judiciary plays a critical role in the enhancement and interpretation of environmental law and the vindication of the public interest in a health [sic] and secure environment. Judiciaries have, and will most certainly continue to play, a pivotal role both in the development and implementation of legislative and institution regimes for sustainable development. A judiciary, well informed on the contemporary developments in the field of international and national imperatives of environmentally friendly development, will be a major force in strengthening national efforts to realize the goals of environmentally-friendly development and, in particular, in vindicating the rights of individuals substantively and in accessing the judicial process.6 Increasingly, it is being recognized that a court with special expertise in environmental matters is best placed to play this role in the achievement of ecologically sustainable development. The Land and Environment Court of New South Wales is an example of a specialist environment court. It was the first specialist environment court established as a superior court of record in the world and provides an instructive case study. This article first provides an outline of the Court, explaining its history and the purpose of its establishment, its comprehensive jurisdiction, its caseload and the roles of court personnel who exercise the jurisdiction of the Court. Secondly, this article examines how the Court is moving towards functioning as a multi-door courthouse with an array of dispute 5. U.N. ENVIRONMENT PROGRAMME [UNEP] GLOBAL JUDGES PROGRAMME at v (2005), available at http://www.unep.org/publications/search/pub_details_s. asp?ID=3747. 6. Donald Kaniaru et al., UNEP Judicial Symposia on the Role of the Judiciary in Promoting Sustainable Development 22 (1998) (paper presented to the Fifth International Conference on Environmental Compliance and Enforcement), available at http://www.inece.org/5thvol1/lal.pdf. 3 2012] ENVIRONMENT COURT OF NEW SOUTH WALES 399 resolution services under one roof. Thirdly, the Court is under a duty to facilitate the just, quick and cheap resolution of the real issues in proceedings. This article elaborates on these concepts and discusses the means the Court employs to achieve this goal. Fourthly, this article explains how the Court measures its performance in achieving the three objects of court administration: equity, efficiency and effectiveness. Finally, this article brings the discussion together by isolating at least a dozen benefits to the system of justice that have been generated by the establishment and operation of the Court. II. LAND AND ENVIRONMENT COURT IN OUTLINE A. Australia’s federal system Australia has a federal system of government. The responsibility for management and protection of Australia’s environment is split between the Commonwealth of Australia and each of the States that comprise the Commonwealth. New South Wales is one of the States. The Commonwealth can only make laws pursuant to a particular power in the Australian Constitution. Although there is no express power to legislate on environmental matters, the Commonwealth is able to use one or more of its powers, which although not directly dealing with environmental matters, can be viewed in certain circumstances as properly enabling the Commonwealth to deal with environmental matters.7 The most commonly invoked sources of power are the trade and commerce power;8 the power to regulate foreign corporations and trading or financial corporations;9 and the external affairs power.10 The external affairs power enables the Commonwealth to implement international conventions to which Australia is a party. Partly pursuant to this power, the Commonwealth enacted 7. Brian J. Preston, Institutional Roles in Establishing and Enforcing Environmental Priorities, 10 UCLA PAC. BASIN L.J. 224, 224 (1991). 8. AUSTRALIAN CONSTITUTION s 51(i). 9. Id. s 51(xx). 10. Id. s 51(xxix). https://digitalcommons.pace.edu/pelr/vol29/iss2/2 4 400 PACE ENVIRONMENTAL LAW REVIEW [Vol. 29 the Environment Protection and Biodiversity Conservation Act11 to implement a number of international conventions, including the Convention on Wetlands of International Importance especially as Waterfowl Habitat,12 the Convention Concerning the Protection of the World Cultural and Natural Heritage,13 the Convention on International Trade in Endangered Species of Wild Flora and Fauna,14 and the Convention on Biological
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