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Precedent (Australian Lawyers Alliance) |
IS SUSTAINABILITY CLASSIFIED AS LAW IN AUSTRALIA?
By Dr Rhett Martin
Australians embrace sustainability as a concept that sounds worthwhile and may induce actions that help the environment, but what exactly does this term mean, and how does it apply in Australia?
Despite international treaties and agreements, national and state and territory regulation regarding ecological sustainable development, and regulatory inclusions using sustainability-related criteria and indicators for natural resource protection, the state of our biodiversity systems and natural resource management remains seriously compromised. This begs the question: what exactly is the status of sustainability as a legal concept and what is its practical effect in regulation?
In this article, this question is examined in the context of a comparison between an example of resource management legislation and an example of conservation legislation. The author considers the inclusion of principles of ecological sustainable development in both forms of legislation and examines whether this represents sustainability as law. In examining the legal status of sustainability, the author makes a case for change to enhance sustainability as a legal norm with greater practical effect.
What is the legal status of sustainability in Australia? This question requires consideration of how sustainability is included in Australian regulation. In 1992, all Australian jurisdictions agreed that natural resources and the environment should be used and developed in an ecologically sustainable way.[1] Collectively the agreed policy statements relating this agreement emphasised integration of economic development and ecological protection in decision-making – a problematic integration at best, without clear guidelines, but still an attempt at sustainability in regulation. Integration meant applying environmental planning, generational equity, and both incentive- and disincentive-related and market-based concepts for protecting the environment and enhancing the conservation of biological diversity.
These policies also promoted application of the precautionary principle, a principle of ecological sustainability that defies simple classification or easy application.[2] Some commentators considered these policy inclusions as a mix of preferred policy outcomes, mechanisms for applying methodologies of policy in regulation, mechanisms creating potential liabilities, and procedural processes.[3] This policy mix resulted in diverse approaches to putting sustainability into effect and led to confusion about how to give sustainability a legal definition.
Does sustainability in regulation represent a substantive outcome, a procedural process, a combination of these, or something else? At very least, sustainability policy requires some level of integration of these inputs at a decision-making level. This inherently points to the integration of social, economic and ecological factors in order to adequately define sustainability as ‘able to continue over a period of time’.[4] The success of this integration from a regulatory perspective is gauged in this article by looking at two separate examples: one of regulation of a natural resource, and one of conservation.
Since there is no generally accepted sustainability definition which applies to sustainability in natural resources regulation, it is preferable to conduct an analysis using examples from a natural resources sector and from conservation regulation. While these are not necessarily representative of all uses of sustainability in regulation, a sectoral approach is, at least, representative of how sustainability is used as law. Examples are given here of the status of sustainability in forestry legislation, and in the conservation of the Great Barrier Reef.
Sustainability in Victorian public forestry is subject to the Sustainable Forests (Timber) Act 2004 (Vic) (SF Act). Principles of ecologically sustainable development are set out in s5 of the SF Act and include:
(a) effectively integrating long-term and short-term economic, environmental, social and equity considerations in decision-making processes;
(b) avoiding the use of ‘lack of full scientific certainty’ as a reason for postponing measures to prevent environmental degradation;
(c) considering the global dimension of environmental impacts of actions and policies;
(d) developing a strong, growing and diversified economy to enhance the capacity for environmental protection;
(e) maintaining and enhancing international competitiveness in an environmentally sound manner;
(f) adopting cost effective and flexible policy instruments such as improved valuation, pricing and incentive mechanisms; and
(g) facilitating community involvement in decisions and actions on issues affecting the community.[5]
The relevant Minister has a duty to consider these principles when making decisions under the SF Act.[6] However, this duty does not appear to include the mandatory application of these principles. The difference between a requirement to consider and a separate discretionary application is a crucial regulatory distinction in terms of the status of sustainability. The Minister also has a duty to determine sustainability criteria and indicators to be used by regulators for reporting sustainable forest management performance on a five-yearly basis.[7]
The SF Act also stipulates that the Minister ‘may’ develop a Sustainability Charter, setting out broad sustainability objectives for regulators to observe in decision-making.[8] Once developed, the Charter ‘must’ set out objectives consistent with principles of ecologically sustainable development for sustainability of both forests and the timber harvesting industry.[9] In terms of actual harvesting, the SF Act does not require the Minister to consider principles of ecologically sustainable development when allocating timber regions for harvesting,[10] but does require them to ‘have regard’ to these principles when ‘reviewing’ the allocation of forest for harvesting after the initial allocation has been made.[11]
The regulatory regime for sustainable public forest management in Victoria does not position sustainability as representing a legally enforceable standard, nor does it represent a legal norm. The provision for only discretionary application of principles of ecologically sustainable development, and the absence of any sustainability criteria and indicators for determining the initial allocation of forest for harvest, support the view that sustainability represents only a discretionary, and not a mandatory, procedural guideline in decision-making. In other words, sustainability is regarded as no more than something to consider when making decisions under the SF Act.
In addition, the use of sustainability criteria to measure different aspects of sustainable forest management is an important aspect of sustainability as a measurable standard. It is not possible to determine an outcome relating to a sustainability objective without the existence of criteria and indicators for measuring performance. The SF Act provides for mandatory determination of criteria and indicators for sustainable forest management;[12] however, there is no stipulation of their form and content other than that the criteria, once formulated, must be used in reporting on the performance of sustainable forest management.[13] Furthermore, it is unclear what ‘sustainable forest management’ actually means within the Act. The overall structure of the SF Act could be described as ‘fragmented’ in the way that it characterises the use and application of the principles of ecologically sustainable development: references to mandatory and discretionary requirements are dispersed haphazardly, and as a result there is no coherent structure for sustainable forest management. Sustainability has no separate status in definition and application, and therefore no status as a legally enforceable standard. Rather, it is framed as a procedural guideline within the context of the principles of ecologically sustainable development.
Sustainability has a different status in the Great Barrier Reef Marine Park Act 1975 (Cth) (GBRMP Act). While sustainability is not defined as a discrete concept, it is implicit in the main object of the GBRMP Act, which is the ‘long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region.’[14]
The objects of the Act include ecologically sustainable use of the reef, and refer to regulation of the reef consistent with ‘the principles of ecologically sustainable use’.[15] Sustainable use of the reef is defined as use of the reef consistent with protecting and conserving the environment, biodiversity, heritage values and ecosystem-based management, while being within the capacity of the reef to sustain natural processes for the benefit of future generations.[16] Principles of ecologically sustainable use are defined as integration of long- and short-term decision-making, application of the precautionary principle, inter-generational equity, conservation of biodiversity and ecological integrity, and promotion of the use of valuation, pricing and incentive mechanisms.[17] Zoning plans for the reef must ensure ecologically sustainable use.[18]
This regulatory structure arguably prioritises protection and conservation over use of the reef, since the first two factors are expressly referred to as the main object. Also, the definition of ecologically sustainable use encompasses the use of natural resources consistent with protection and conservation and eco-system based management, and with the capacity of natural resources to sustain natural processes and ensure inter-generational equity.[19] The GBRMP Act goes further than the SF Act by defining a sustainability related role for the regulator: it stipulates that the Great Barrier Reef Marine Park Authority ‘must have regard to, and seek to act in a way that is consistent with’ the objects of the Act and principles of ecologically sustainable use.[20]
Overall, the priority given to conservation and protection in the context of the regulatory structure described above posits sustainability in the Act as a primary duty. Therefore the legal status of sustainability can be described as a legislative duty, though arguably not a legal norm that acts as a binding principle. (For the nature of Australia’s World Heritage Convention obligations in respect of the Great Barrier Reef, their application in domestic law, and the ramifications of an ‘in danger’ listing for the site, see the article on pages xx to xx in this edition.)
While it is not possible to reach a definitive conclusion about the legal status of sustainability using two examples, we can draw some interim conclusions. Understanding the legal status of sustainability requires examining how ecologically sustainable development is used in regulation.
Ecologically sustainable development inherently represents a balance between society, ecology and economy. Accordingly, the status of sustainability should be assessed sector by sector, and the relationship between natural resources legislation and conservation legislation should be examined. The latter appears to address sustainability more holistically and, in our example, prioritises biodiversity protection over development. The natural resources legislation in the forestry example above does not make this prioritisation and attempts to balance economic development and biodiversity protection.
Both examples used in this article reveal a fundamental flaw in that they fail to mandate use of sustainability criteria and indicators in measuring operational decision-making (although the natural resource example does use them for the purposes of post-operational harvest reporting). Regulation also fails to address how the balance between economy and ecology can be achieved. Failure to use sustainability criteria and indicators in operational decision-making means that there is no way of measuring and monitoring sustainability performance ‘on the ground’. In Victoria, the use of criteria and indicators in the compilation of the five-yearly State of the Forest Report are retrospective assessment tools, inevitably resulting in significant gaps in data sets which could be filled if measurement had occurred more prescriptively during the operational phases. Sustainability, in the context of ecologically sustainable development, appears to be an operational guideline with no means for measuring its implementation; it therefore does not represent a legal norm.
We are all on a path towards ‘Mt Sustainability’ because we exist, we consume and presumably intend to do so for our lifetime: consumption is an inevitable aspect of modern living.[21] We cannot easily opt out of our social links and, even if we did so, we would still be dependent on an environment that is bountiful and sustaining. The earth has already exceeded its carrying capacity, so it is inevitable that this excess will become apparent to us as individuals at some point.[22] Addressing this now, even in terms of a sector-by-sector approach, will at least help us prepare for coming change and gradual adjustments of our consumer-driven habits.
So how should we address sustainability in the context of ecologically sustainable development? Regulation is the key driver, requiring lawmakers to recognise ecologically sustainable development as an outcome reliant on measurable processes. The SF Act does not have ecologically sustainable development as an outcome in itself. Instead the object is to ‘provide a framework for sustainable forest management and sustainable timber harvesting’.[23] No measurement methodologies are mandated in the SF Act, nor is there even a requirement to have an environmental impact assessment prior to harvesting. If the desired outcome is ecologically sustainable development, then the process for getting there must be clearly set out in measurable stages that include environmental impact assessments. The current regime for public forest harvesting in Victoria cannot be said to provide for ecologically sustainable development if there are no means to determine when and whether this is achieved.
Sustainability in the context of ecologically sustainable development represents a challenge for lawmakers because of its diverse constituent elements, all requiring integration in the decision-making process. The fact that sustainability is an aspirational concept requiring measurement capability presents a significant challenge to regulation. Some commentators argue that the foundation for achieving ecologically sustainable development requires two regulatory duties:
1. the duty not to undertake a development without approval; and
2. the duty to obtain an environmental impact assessment prior to approval.[24]
The author agrees with this view, and in addition considers it essential, in both natural resource management and conservation regulation, to include the use of criteria and indicators of sustainability in operational decision-making. These must address principles of ecologically sustainable development, and their application must be mandatory. These principles must include inter-generational equity and the precautionary principle, each included in regulation methods to support the application of a particular regulatory rule or injunction. Without a methodology of application, decision-makers may be deterred from applying the principles of ecologically sustainable development or may otherwise be reluctant to act, as demonstrated by the regulator in the Brown Mountain case.[25]
So is sustainability a legal norm in Australia? As shown in this article, to answer this question requires assessment of the integration of economic, social and environmental elements of ecologically sustainable development into regulation. To the extent that this involves a successful integration of these elements into administrative decision-making processes, the author considers that this has not been achieved to an adequate extent – certainly not for the examples shared in this article. In its current state, natural resource and conservation regulation in Australia lacks effective consideration of sustainability in the context of its use in ecologically sustainable development; it further lacks clear application of sustainability in principles of ecologically sustainable development relevant to each natural resource sector.
Since these principles are neither uniformly used nor uniformly described, this adds considerable complexity to determining the legal status of sustainability. Whatever their form, it may be argued that these principles operate primarily as procedural guidelines in decision-making. While the legal system has capacity to make them an enforceable legal norm, their status as a procedural guideline precludes this classification.
To achieve an enforceable legal norm encompassing the procedural requirements inherent in principles of ecologically sustainable development, a plethora of regulatory inclusions are required. These are, among other things:
• measurement capability using criteria and indicators of sustainability;
• the means of identifying when measurement and application of principles of ecologically sustainable development have not been applied;
• the means of identifying when they have been improperly applied, or when a sustainability outcome has not been reached or when a threshold has been breached; and
• an enforcement and compliance regime aligned to such infractions.
None of these elements are present in the legislation considered in this article.
Jurisdictions in Australia failed to embrace the spirit and intent of the original policy promulgated in 1992.[26] A balance between economic development and ecological protection requires an enhanced legal status of sustainability and its use in ecologically sustainable development as an enforceable legal norm. This requires considerable amendment to current natural resource management and conservation legislation; it also requires consumers to recognise that sustainability as an enforceable legal norm may come at a cost. Whether this regulatory cost is paid by those regulated as an outcome of such amendment, or at greater cost later by overuse of our natural resources, is a question for us all to think about.
Dr Rhett Martin is a senior lecturer at the University of Southern Queensland. He has worked in academia at RMIT and Monash University, and prior to that in private practice in Melbourne. He specialises in research on sustainability regulation. EMAIL rhett.martin@usq.edu.au PHONE (07) 4631 2903.
[1] Commonwealth Department of Agriculture, Water and the Environment, Intergovernmental Agreement on the Environment 1992 <https://www.environment.gov.au/about-us/esd/publications/intergovernmental-agreement>; Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development, AGPS Press, 1992.
[3] DE Fisher, Australian Environmental Law: Norms Principles and Rules, Thomson Reuters, 3rd ed, 2014, 173.
[4] See <https://dictionary.cambridge.org/dictionary/english/sustainable>.
[5] SF Act, s5.
[6] Ibid, s5(1). This section sets out the requirement to ‘have regard’ to the principles of ecologically sustainable development; the principles are described in s5(4) and their objectives in s5(3).
[7] Ibid, s6.
[8] Ibid, s11(1).
[9] Ibid, s11(2).
[10] Ibid, s13(a).
[11] Ibid, s19(a).
[12] Ibid, s6.
[13] Ibid, s8.
[14] Great Barrier Reef Marine Park Act 1975 (Cth), s2A(1).
[15] Ibid, ss2A(2) and 2A(3)(d).
[21] The term ‘Mt Sustainability’ and the path toward it was a term coined by a US corporate leader, Ray Anderson, who made his company Interface Inc fully sustainable and was a visionary in promoting environmental sustainability. See <https://www.raycandersonfoundation.org/assets/pdfs/rayslife/EssayClimbingMountSustanability.pdf>.
[22] S Emmott, 10 Billion, Penguin, 2013.
[23] SF Act, s1(a).
[24] Fisher, above note 3.
[25] Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1. VicForests argued it was not responsible for applying the precautionary principle, and did not have to apply it once a decision was made to harvest in a particular forest coupe, a view ultimately rejected by the Court.
[26] See the policies referred to at above note 1.
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