Major Issues Confronting the Judiciary in the Adjudication of Cases in the Area of Environment and Development
The Hon. Justice Paul L. Stein AM
Judge, NSW Court of Appeal
Sydney, NSW, Australia
Delivered in Manila on 6 March 1999 to the "South-East Asian Regional Symposium On The Judiciary And The Law Of Sustainable Development"
Sponsored by UNEP/UND, Hanns Seidal Foundation and the Government of the Philippines
INTRODUCTION
When I was asked to fill the shoes of His Excellency Judge Christopher Weeramantry, Vice President of the International Court of Justice, my feelings were of utter humility. Judge Weeramantry has been one of my heroes, at a time and in a profession where we have but few. My first knowledge of him was in the late 1970's when he was a Law Professor at Monash University in Melbourne, Australia. He was, in my opinion, a fine teacher but (I think) underrated by local academics. His background and experience led him to a deep respect for humankind and an acute awareness of injustice and inhumanity.
In 1979 he spent a sabbatical at Stellenbosch University in South Africa. The system of State Apartheid abhorred him. On returning to Australia he wrote a compelling treatise on the system and his hopes for the future of South Africa. Published in 1980 I commend Apartheid - The Closing Phases?1 to you. As we know Weeramantry's expressed hopes took longer to come to fruition. However, 20 years ago he could see the cracks appearing and the inevitability of change which others thought impossible because of the military might of the Afrikaners.
SUSTAINABILITY - THE RELEVANCE OF THE PAST
Fast forwarding 20 years to 1997 to the judgment of the International Court of Justice (ICJ) in the case between Hungary and Slovakia over the damming of the River Danube,2 the separate opinion of the Vice President is a masterpiece. It comprehensively explains that today's concepts of sustainable development are modern counterparts of ancient examples of sustainability. He points out that some of the principles of traditional legal systems can be useful tools to develop modern environmental law. His judgment provides many examples ¾ from the Pacific, Asia, Africa, Australia, the Middle East, the Americas and Europe.
His opinion should be required reading for all of us, especially Euro-centrics, like myself. An example which His Excellency touched upon, with which I have some contact, are the Australian Aboriginals. Aboriginal people have inhabited Australia for 50,000 to 60,000 years, no-one is quite certain how long. In terms of climate, landform and soils, the Australian continent has often been described as the most inhospitable part of the world. Yet using the resources of traditional wisdom and a system of customary law, the Aborigines learnt to live in harmony with this environment in a remarkably successful fashion. A necessary reverence for nature informed their lives and daily practices. They knew what was necessary to conserve the resources of the land yet be able to comfortably live off them. Judge Weeramantry reminds us of the riches we can draw from ancient practices, such as the Australian Aborigines, in order to extend, develop and understand modern principles of sustainability.
It is time for us to learn before it is too late. A little more than 200 years ago so called 'civilised' white peoples from Great Britain took possession of Australia. By various means they destroyed Aboriginal culture and religion, indeed its whole society. Introduced diseases and vices combined with unofficial genocidal policies of the colonial population, and reduced the Aboriginal population to near extinction. Aboriginal people were seen as merely some form of degraded sub-human savage, as having no laws, no permanent settlements, no written language and no tilled agriculture. These were seen as indicea of civilisation. However, their strong kinship links, spirituality, oral traditions, conservation techniques and ability to live off the land without depleting its resources, were all ignored. The land was seen as Terra Nullius, as belonging to no-one, and this was used as a justification for its seizure without compensation or treaty. This was only exposed as a convenient legal fiction by the High Court of Australia in Mabo v Queensland3 in 1992.
Of course, as His Excellency notes in his separate opinion on the damming of the Danube, Australian Aborigines had their own development projects. He cites the ancient example of extraordinary water control and storage techniques in what is today known as south-western Victoria. Here, many thousands of years ago, the native inhabitants displayed a perfect understanding of hydrology of a system of lakes and watercourses. They constructed a highly sophisticated network of weirs, sluices and inter-connecting channels in order to preserve the precious commodity of water.4
THE URGENCY OF SUSTAINABILITY
It is necessary for all of us to confront the reality of why the transition to ecologically sustainable development is no longer a soft option but rather an economic imperative for survival. We now have the knowledge to know that our patterns of production and consumption are unsustainable. We know what harm we are doing to our environment and to the future of our children and their children. We must face the challenge.
Maurice Strong, Head of the Earth Council, said this in 1995:
As we move into a new millennium, we face a challenge without precedent in human experience, one that will determine our future as a species. No longer a soft option, our survival and well-being requires the transition to sustainable development. We must change course.5
I had the great privilege of attending the Regional Symposium of the Judiciary in Promoting the Rule of Law in the area of Sustainable Development in 1997 in Colombo, Sri Lanka 6 I went as a resource person but soon realised that it was I who was on a learning curve. It was an immensely rich experience where judges and senior officers from Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka met and exchanged insights and experiences. We soon discovered that we had enormous commonality in our approaches and aspirations but also our problems, notwithstanding different cultural and legal backgrounds. I quickly developed a great respect for the judges of South-Asia, for their integrity, honesty and bravery. Behind the scenes, in discussions, I was able to discern a level of concern and unease at the multiple challenges faced and about to be faced by the judges. The inherent difficulties in balancing the protection of the environment and the right to development, usually pleasing no-one, promised a challenging future but one which they were all very determined to face.
DANGERS FOR SOCIETY AND THE JUDICIARY
That great jurist, Benjamin Cardozo observed that 'the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by'.7 A number of discernible trends make this statement inevitable today but bring with it more tensions for the judiciary. The development of international law and the incorporation of many of its principles into domestic law, especially environmental law, can sometimes put judges in apparent conflict with governmental and political aspirations. A notable retreat from government regulation and enforcement, apparent in many countries, together with a move towards greater self-regulation by powerful trans-national businesses and so-called market based solutions, has lead to a greater resort to the courts. This has been spurred by a developing consciousness of justiciable rights. Political scientists have noted a drift to what they call the 'judicialisation of politics'.8 That is, people seeking to resolve social and environmental conflicts by resort to the courts, rather than through political institutions.
Justice Robert French, a judge of the Federal Court of Australia and until recently the President of the National Native Title Tribunal, recently noted that increasing resort to the courts for resolution of social issues is likely to generate both high expectations of what courts can deliver and tensions with other institutions (eg. government and the church) to which the court may have been preferred.9 With this in mind, we must accept that the fundamentals of the judiciary, in particular its independence from the Executive, must not be taken for granted We must seek to maintain the cardinal principle of independence from government and from all litigants in order to protect what has sometimes been called the 'fragile bastion'.10 The fact of the matter is that the judiciary is the weakest branch of government and ultimately must rely upon community support. For this to occur we need to be sensitive to community values and to continue to determine cases impartially and fairly, according to law. This means that judges have a high responsibility to be sensitive to society and think about the ways in which our duty to society can best be achieved.
THE CHALLENGE OF SUSTAINABILITY
We judges are all part of a fundamentally exciting and challenging expansion of environmental law. Modern environmental law is a relative newcomer to the legal agenda but it is the most rapidly expanding, sometimes in hand with developments in administrative law, another public law area. In the past two decades environmental law has progressed by exponential proportions. International environmental law is turning from soft law into hard.11 As the principles of sustainable development harden from mere aspirations into substantive law, so our delicate task of balancing the competing interests of development and environmental protection become more urgent. Many of the key principles of Agenda 21 have been received into national domestic law, sometimes into State Constitutions. In some jurisdictions, the principles of international law may have a part to play even if not expressly incorporated and received into domestic law. An example of this, in the context of immigration law, is the case of Minister for Immigration and Ethnic Affairs v Teoh, decided by the Australian High Court in 1995.
The court said:
The provisions of an international convention to which Australia is a party, especially one which declares fundamental rights, may be used by the courts as a legitimate guide in developing the common law.12
CORE PRINCIPLES OF ESD
The core concepts of ecologically sustainable development (ESD) include the:
* conservation of biological diversity and ecological integrity
* inter-generational equity (responsibility)
* precautionary principle, and
* valuation and pricing of environmental resources including the polluter pays principle
In seeking to apply these principles to given situations the objective must be to strive to maximise the quality of life of current generations while preserving the natural capital for future generations. This can only be achieved by accepting certain constraints. These constraints include maintaining a sustainable yield in renewable resources and conserving and replacing exhaustible resources as we use them. It also means that society must maintain ecological support systems and biodiversity. It follows that, in a sense, development becomes a more level static concept rather than one unnecessarily seen as requiring a rate of change denoted only by the concept of growth.
The working through of the principles of ESD by the courts (national, regional and international) is producing a body of environmental law which is contributing to our joint understanding of these crucial issues and the ways in which some of the issues may be resolved. Key to the principles of ESD is a renewed recognition of our duty to each other, including our neighbours - those living in the next village, town or island, further down the river system or even across national boundaries. It is trite that pollution and the environment have no man-made territorial boundaries. The recent forest fires in Indonesia confirmed this. Accordingly, we are forced into an era of co-operation and co-existence with our neighbours, whether we like it or not. But our responsibilities extend further than our neighbours.
They are to the earth itself because the consequences of our actions extend across generational frontiers. Environmental law has to deal with future generations. The decisions we make irrevocably mould the lives of generations to come. This imposes upon us a lofty responsibility from which we must not shirk. One tool at our disposal, as Judge Weeramantry points out, is learning from the wisdom of the past to fulfil our duty to those who will follow us. In this connection the decision of the Supreme Court of the Philippines in Oposa v Secretary of State of Department of Environment and Natural Resources has been catalyst.13 This judgment has created world-wide interest among judges and academics.
THE PROBLEMS OF MODERN LAW AND SOME ANSWERS
The way in which modern legal systems have developed provides a series of obstacles to successful implementation of sustainable development principles. In most jurisdictions courts merely determine disputes between the parties presenting themselves. These private disputes between party A and party B are often determined by adversarial procedures. The judge hears the evidence which the parties present, hears their submissions and proceeds to make a decision between them. But most environmental issues are not amenable to be determined as if they are private disputes. The decision may have wider ramifications for the environment and on the community affected by the decision. The case may have public law implications. How can a court ensure that these wider considerations are properly taken into account? This is where the international law concept of erga omnes may come into play. It is the concept of an obligation owed towards all of the world. Again, we are indebted to Judge Weeramantry for his exposition of the principle and its centrality to public environmental disputes.14
Weeramantry notes in the Danube opinion that the procedures applicable to deciding inter partes disputes are scarcely appropriate, nor can they do justice, to rights and obligations of an erga omnes nature. This is particularly so where a case may involve potential or actual environmental damage of a far-reaching and irreversible kind. The issue raised has not yet been solved at an international level although many national jurisdictions are developing techniques and means to cope with issues which transcend individual aspirations.
Environmental law is developing a very public law face. This is apparent in the rapid growth of public interest environmental law. Here the mechanisms of liberalised locus standi and the strength and energy of many NGO's is challenging traditional practices and procedures. Some jurisdictions have deliberately liberalised standing in environmental statutes to acknowledge the public, as opposed to the private, nature of environmental issues. In my state of New South Wales, as I describe in my separate paper, any person may approach the court alleging a breach or threatened breach of environmental law.15 These 'open standing' provisions have had a dramatic impact on the development of environmental law. They have enhanced public participation (another of the key Rio principles). Open standing has also spawned public interest litigation and lead to a reappraisal of the appropriateness of many of the established practices and procedures of courts in determining litigation. For example, new approaches to the costs of litigation have been necessary.16
Also, other barriers or hurdles to public interest litigants have been modified or revoked.17 These initiatives attempt to reflect the public nature of such disputes and underline the public interest in the proceedings and the outcome. The erga omnes doctrine also involves reappraising the relevance of classical contract law and property rights where they touch upon environmental disputes.18 I will not take time out now to describe these developments. A discussion of the NSW experience is provided in my separate paper.
The doctrine of public trust is another aspect of public law which may be making a come back. Originating partly from the ancient Roman Empire, it has found favour in many parts of the world. For example, in India and the United States. The doctrine embodies the concept of stewardship of the land and its preservation for present and future generations. In my part of the world, it is starting to take its place in environmental decision-making, especially where publicly owned land is involved.19
CONCLUSION
In our work in the area of sustainable development, we can be assisted by expanding our knowledge of the environmental issues we face in our region. This does not mean that we do not decide cases on the evidence presented. However, the greater our knowledge, the better we are able to assess and understand the evidence presented, often of a technical scientific nature. In this respect, we also need to consider how we can obtain more independent expert advice in the hearings before the courts. Independent expert panels owing a duty to no-one but the court are a possible consideration.
Another issue of which we need to become more aware is the differing notions of property ownership prevalent in many societies. The importance of legal ownership and other rights and interests in land are particularly significant in cases affecting natural areas. Many cultures, particularly indigenous ones, have quite different concepts of their relationship to the land than modern western notions of land ownership. The rights of land-owners often clash with the aspirations of environmental law in the areas of sustainability and biodiversity. These clashes may provide difficult and tense situations for the courts to resolve. Determining environmental disputes requires all the skill and acumen we can muster. To successfully carry out our judicial functions, we must learn what we can from traditional wisdom and from each other.
Perhaps I can close by quoting from Timothy Wirth, Under-Secretary of State for Global Affairs in the US Department of State. He noted that ecological systems were the very foundation of modern society, in science, agriculture and social and economic planning. In the long term, living off our ecological capital is a bankrupt economic strategy. He said:
When the environment is finally forced to file for bankruptcy because its resource base has been polluted, degraded, dissipated, and irretrievably compromised, the economy will go down with it.20
As judges it is our task to see that in determining cases in the area of sustainable development we do not end up in environmental as well as judicial bankruptcy.
Thank you.
Footnotes
1 Apartheid - The Closing Phases? C.G. Weeramantry, Lantana Books, Melbourne, 1980
2 ICJ 25 September 1997 case concerning the Gabcikovo- Nagymaros Project (Hungary v Slovakia)
3 Mabo v Queensland (No. 2) (1992) 175 CLR 1
4 ICJ Separate Opinion of Vice President Weeramantry p 209 footnote 72
5 Keynote address to Third Annual World Bank Conference on Environmentally Sustainable
Development Washington DC October 1995
6 The Report of Proceedings has been published by SACEP and UNEP Publication Series on
Environmental Law and Policy No. 4
7 Benjamin Cardozo, The Nature of the Judicial Process (1921)
8 Australian Politics in the Global Era, Copling, Considine and Crozier, Melbourne University
9 Address to Supreme and Federal Court Judges Conference, Back to the Future, Where we have been
and where we are going, Sydney, January 1999
10 The Fragile Bastion published by the Judicial Commission of NSW (1997) being a series of essays
on the independence of the judiciary
11 Turning Soft Law into Hard - An Australian Experience with ESD Principles in Practice - Stein Vol
3 No 2 - The Judicial Review 91 - being an address presented at the Hague in May 1996
12 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
13 33 ILM 193 (1994) GR No. 101083 Summarised in SACEP/UNEP Compendium of Summaries of
Judicial Decisions in Environment Related Cases, 1997
14 ICJ Separate Opinion of Vice President Weeramantry in the damming of the Danube case at pp
220 - 225
15 See pp 10 - 12, New Directions in the Prevention and Resolution of Environmental Disputes -
Specialist Environmental Courts
16 In Oshlack v Richmond River Council (1998) 72 ALJR 578 the High Court held that the public
interest nature of the litigation was a relevant factor in determining costs
17 See pp 12 - 15 of my second paper
18 Closing address of Judge Weeramantry to Regional Symposium on the role of the Judiciary -
promoting the Rule of Law in the Area of Sustainable Development, Sri Lanka, July 1997, p 244
19 See Ethical Issues in Land-use Planning and the Public Trust, Stein, Vol 13 No 6, EPLJ 493
(December 1996)
20 Third Annual World Bank Conference on Environmentally Sustainable Development, Promoting
Sustainable Development, Values and Political Will, Timothy E. Wirth, October 1995
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