ENVIRONMENTAL GOVERNANCE:
A COMPARATIVE ANALYSIS
OF
PUBLIC PARTICIPATION AND ACCESS TO JUSTICE
MICHAEL I. JEFFERY QC[*]
INTRODUCTION: ENVIRONMENTAL GOVERNANCE
We now possess the knowledge that our actions do have a real impact on the
environment. Ignorance is no excuse for inaction. With knowledge comes the moral
responsibility to act carefully in regards to the environment, on a global,
domestic, and local scale. The concept of environmental governance
incorporates this ethic. The Earth Charter
Initiative[1]
expresses this sense of environmental responsibility by stating that the
improvement of democratic practices, transparency and accountability of
government institutions, along with civil participation in decision making, are
strongly related factors to the objectives of the protection of the environment
and social and economic justice. This paper will deal with the broad concept
and practice of environmental governance, with a focus on the controversial but
prudent issue of intervenor funding; and the growing awareness and recognition
of the special contribution to be made by indigenous communities in maintaining
ecosystems and teaching us about the sustainable use of our natural resources.
The concept of environmental governance encompasses the relationships and
interactions among government and non-government structures, procedures and
conventions, where power and responsibility are exercised in making
environmental decisions. It concerns how the decisions are made, with a
particular emphasis on the need for citizens, interest groups, and communities
generally, to participate and have their voices
heard.[2] Therefore, the concept does
not apply to the province of government
alone,[3] and the term
‘governance’ must be distinguished from
‘government.’[4] It is
imperative that we study the actions of the government in terms of environmental
policy and decision-making, but we must also observe how citizens take on their
own responsibility and develop environmental initiatives.
As an extension of
the concept of environmental governance, good environmental governance is
measured by the effectiveness of strategies and initiatives implemented to
achieve environmental goals. These goals may be capacity building, increased
access to environmental information, participation and
justice.[5] International
environmental law instruments, such as The Earth Charter Initiative,
Agenda 21,[6] and the World
Conservation Union’s (IUCN) Draft International Covenant on Environment
and Development,[7] set out the
framework for achieving environmental goals such as these.
The Aarhus
Convention,[8] although it
presently applies primarily to the region of Europe, has global significance for
the promotion of environmental governance. The Convention, which has the current
status of 40 signatories and 35 parties who have ratified or acceded to it,
focuses on the need for civil participation in environmental issues, as well as
the importance of access to environmental information held by the government and
its public authorities. Aarhus goes further than previous international
conventions, in providing explicit linkages between environmental rights and
human rights. Commencing with the preamble, it states in the 7th and 8th
preambular paragraphs:
Recognising also that every person has the right to live in an environment adequate to his or health and well-being, and the duty, both individually, and in association with others, to protect and improve the environment for the benefit of present and future generations,’
‘Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights. [9]
The Convention also deals forcefully with governmental
accountability, as it grants the public rights of access to information and
imposes obligations on public authorities to provide this information. Access to
environmental information leads to a well-informed public, who are more able to
question the actions of the government. These factors can then lead to more
accountable environmental decision-making and greater potential for
environmental justice. Article 4 outlines when it is appropriate for access to
information to be denied, these circumstances being when the public authority
does not have the information
requested;[10] when it is
unreasonable to provide the
information;[11] and when
confidentiality is in the public
interest,[12] for example, with
intelligence or national security information. Moreover, information can be
refused if disclosure will adversely affect factors such as the course of
justice[13] and intellectual
property rights.[14] At the first
Meeting of the Parties to the
Convention,[15] the Parties noted
the revolution in electronic information technology as being very important to
the promotion of environmental governance. The Meeting’s declaration
called on parties to the Convention to make government environmental information
progressively available electronically, yet for these services to be kept under
frequent review.[16] The Meeting of
the Parties stressed that the Convention was largely about building partnerships
between an empowered civil society and the government, and that the public had
responsibility for sustainable development too. It was stated:
The engagement of the public is vital for creating an environmentally sustainable future. Governments alone cannot solve the major ecological problems of our time. Only through building partnerships within a well-informed and empowered civil society, within the framework of good governance and respect for human rights, can this challenge be met.[17]
The
Aarhus Convention is a clear advance in the area of environmental
governance. It is an instrument that is being considered for its merits not only
by European countries, but also by many countries around the world. The
Aarhus Convention presents us with the type of model for environmental
governance that will be discussed in this paper, that is, one that factors in
civil empowerment, through access to information and resources; and
participation by civil society and certain stakeholders, such as Indigenous
groups.
There are numerous impediments to achieving good environmental
governance. The most obvious limit is
sovereignty,[18] that is, each
country being an independent state, free in theory from external interference in
the running of their affairs.[19]
With this limit in mind, international environmental law can appear ineffective.
However, the ability of international organisations, both intergovernmental and
non-governmental, and the application of widely accepted principles to keep
governments accountable must not be
overlooked.[20] Furthermore, as
another limitation on good governance, the principles set out in the various
hard and soft international environmental law instruments are arguably not
universal in nature. Different cultures or societies may conceive of good
environmental governance differently. For instance, some systems may give
priority to individual rights, whereas others will instead emphasise communal
obligations and the public good.[21]
In addition, it must be accepted that the world is non-homogenous in nature.
Some countries have vastly different natural landscapes to others, and this
necessitates varied governance approaches. Of course, there is also the
consideration that there is a clear disparity between countries, and even within
countries, in terms of their capacity to implement better environmental
practices and the distribution of natural resources across the globe. Cultural
relativism, geographical differences and wealth disparities may be seen as
challenges to the development of good environmental governance schemes around
the world, but these factors must not be seen as complete hindrances to success.
Instead, they are factors that require focused and concerted attention. A
common, yet differentiated approach between countries is necessary. The means of
achieving better environmental protection may be different, yet the goals of
sustainability and conservation can be shared.
The clear imbalance of
resources and finances between proponents and concerned individuals or community
groups in development cases is a major constraint on good governance, as it
limits the potential for effective citizen participation, deliberation and
balanced environmental decision making. This concern will be one of the primary
issues examined in this paper, in relation to environmental governance.
Sufficient resources are needed for effective participation in order to
encourage concerned citizens taking advantage of the opportunities provided to
challenge decisions and/or seek other avenues of redress. In some instances, it
is left up to public groups to highlight inadequacies in decision-making and to
see that the relevant laws are actually enforced. These groups will be unable to
perform this function effectively if they have little or no funds to hire legal
counsel, retain expert witnesses, produce documents and conduct research.
Because members of the public have such an important role to play, they should
not be left to rely on the ability to raise their own funds, or on funds from
benevolent donors. Participation is one thing, but funds and resources are
needed in order for there to be effective, meaningful participation.
Participatory tokenism must be
avoided.[22] This is why the issue
of intervenor funding is very relevant.
STANDING AND INTERVENOR FUNDING AS MATTERS OF ENVIRONMENTAL JUSTICE
The scope given to public interest litigants to have standing to sue is a
very important aspect of environmental governance, as it concerns the principles
of participation and environmental justice. The rules regarding locus
standi, determining who has the right to sue to enforce the law or highlight
erroneous decisions, have traditionally been strict in Australia. The tests for
standing for environmental advocates in Australia has arguably been
revolutionised in recent times, going back to the creation of the Land and
Environment Court in 1979 in New South Wales. In Section 123 of the
Environmental Planning and Assessment Act 1979 (NSW), open standing
provisions were incorporated to permit ‘any person’ to approach the
Court to seek to enforce any breach or apprehended breach of the law. Since
then, open standing provisions have been extended to most, if not all planning
and environmental statutes. At the Commonwealth level, the application of open
standing provisions has been extended to non-government organisations (NGOs)
under the Environment Protection and Biodiversity Conservation Act 1999
(Cth).[23]
The traditional,
strict test of standing can be found in the case of Boyce v. Paddington
Borough Council [1903].[24] Here
it was decided that the plaintiff must have suffered ‘special damage
peculiar to himself from the interference with the public
right.’[25] Almost eighty
years later, the High Court of Australia, in Australian Conservation
Foundation Incorporated v.
Commonwealth,[26] decided
the expression ‘special damage’ from Boyce, could also mean
‘having a special interest in the subject matter of the
action,’[27] yet an interest
‘does not mean having a mere intellectual or emotional
concern.’[28] This case
concerned a proposed development in the state of Queensland, which required
Commonwealth approval and an Environmental Impact Statement to be completed
under the relevant legislation, the Environment Protection (Impact of
Proposals) Act 1974 (Cth). The Australian Conservation Foundation (ACF)
submitted written comments to the Minister concerning the Environmental Impact
Statement, stating that there were environmentally damaging aspects of the
proposed development. The Minister soon announced that the development would go
ahead, and ACF sought declarations and injunctions to halt the development, but
the Court held they lacked standing to sue. In the words of Gibbs J, “A
belief, however strongly felt, that the law generally, or a particular law,
should be observed, or that conduct of a particular kind should be prevented,
does not suffice to give its possessor locus
standi.”[29]
The
environmental concerns of the Australian Conservation Foundation, one of
Australia’s major independent environmental organisations, were deemed not
enough, despite their wish to see the relevant legislation enforced. Rules like
these could seriously hinder the development of good environmental governance,
and sustainable development. The environment cannot speak for itself. It needs
willing individuals or groups to defend it, especially if the relevant
legislation is ineffective and not enforced in any other way.
The
Environment Protection and Biodiversity Conservation Act 1999 (Cth) has
now widened the scope for conservationists and conservation groups to seek
judicial review, and obtain remedies, such as an injunction, to prevent breaches
of the Act.[30] Under Section 475,
public interest litigants (people or bodies involved in conservation activity or
detailed research) are given the power to seek an injunction on the grounds of
false or misleading information being detected in an application for a
development approval or an Environmental Impact Statement. This has been
applauded as a positive move towards better environmental decision-making, as
environmentally committed citizens or groups have an avenue to voice their
concerns in court.
On the other hand, the necessary limit that there must be
false or misleading information can be criticised as still too restrictive.
Furthermore, loosened standing rules might mean there is increased potential for
public participation, yet this participation can be described as almost
meaningless, or tokenistic, in the absence of the environmental advocates having
sufficient resources to be able to present a strong argument. The unfair lack of
balance between wealthy developers and concerned citizen groups is not dealt
with by changes to locus standi rules, but rather through the application
of a court or tribunal’s power to award costs or through an integrated
system providing for legal aid and/or intervenor
funding.[31]
In terms of
environmental governance, the funding of intervenors and environmental defenders
is very important in promoting the principles of participation, access to
information and social and economic justice. An individual or group may not be
directly involved in a dispute, but they can seek to intervene as a party to the
proceedings in order to protect their interests, where those interests are
different from the existing
parties.’[32] If the court
grants this party leave to intervene, they become a party to proceedings and can
appeal and tender evidence. In Levy v. Victoria
(1997),[33] Brennan J commented on
intervention in the following words, “A non-party whose interests would be
affected directly by a decision in the proceeding- that is, one who would be
bound by the decision albeit not a party- must be entitled to intervene to
protect the interest liable to be
affected.”[34]
In a similar
sense to the general standing rules, a party who seeks leave to intervene, is
subject to the requirement that their interests be affected, and that they need
not just to have a mere intellectual or emotional desire for the law to be of a
certain character.[35]
Australia
has demonstrated a level of commitment to the public interest by its reforms to
standing provisions. The state of New South Wales established the Land and
Environment Court (LEC) in 1979 solely to adjudicate matters of environmental
and planning law. In recent times, Australia has also adopted the approach of
not assessing costs against unsuccessful environmental litigants, due to the
negative deterrent effect awarding costs against them might have on public
interest representation. In Oshlack v. Richmond River
Council,[36] the rationale
behind not assessing costs against unsuccessful public interest litigants was
that ‘there is little point in opening doors to the courts if litigants
cannot afford to come in,’[37]
and that the fear of the possibility of having to pay the costs of the other
side if unsuccessful ‘must inhibit the taking of cases to
court.’[38] The Court
considered the role of public participation in the environmental law process,
and saw the special circumstances of public interest litigation as a reason to
depart from the traditional rule of
costs.[39] This case was a
significant and commendable advance in environmental law. Australia, however,
has still been reluctant to take a step further to accept the intervenor funding
model, either funded by the state or by proponents themselves.
It is
recognised that in an adversarial system, the mere idea of proponents funding
their own opposition may be considered somewhat revolutionary and inappropriate,
however, a strong argument can nevertheless be mounted on the basis that the
proponent in most cases stands to gain financially if successful in the
regulatory proceeding leading up to the granting of a permit, license or
approval to proceed with the project.
The primary purpose of the
environmental regulatory regime in most instances, is to ensure the protection
of the environment and consequently, it is critical that the decision
maker be in the position of making an informed decision based on appropriate
evidence put before the court by parties other than the proponent. In this
context, the provision of intervenor funding by the proponent may be viewed as
an additional fee much in the same nature of an impost charge imposed upon
developers in regards to obtaining development approval. In circumstances where
intervenor funding is considered absolutely necessary in order to ensure good
environmental governance, a case can be made that the intervenor should not be
forced to bear the expenses related to meaningful participation.
The point
in time when public interest or environmental litigation most requires
assistance is at the preparatory stage, not after the case has been decided.
Reimbursement for certain expenses at the end of the case does not address the
timing issue, as this form of assistance comes too late to effectively encourage
public participation in ensuring that environmental law is enforced. Most
environmental ‘enforcers’ ‘or intervenors’ are private
citizens, non-profit organisations or non-governmental organisations. Often
these parties may not be able to afford to bring an action, despite the chance
that they will later be reimbursed. They may not be able to cover expenses like
attorney or agent fees, expert witness fees, and the cost of studies, reports,
tests or projects in advance.[40]
More pragmatically, legal counsel and/or expert witnesses are generally not
prepared to participate on the basis that they ‘may’ as opposed to
‘will’ receive their fees at the conclusion of the proceeding.
Therefore, awarding costs after the fact does not effectively promote citizen
participation, which is one of the main principles of good environmental
governance. Nor does it enable those intervenors who nevertheless choose to
participate with little or no resources at their disposal, to place before the
decision-maker the kind of evidence that will lead to a more balanced and better
environmental decision.
Lack of adequate funding more often results in
ineffective participation at best, or in many cases, it places a chill on the
ability of the public to exercise their rights to participate in environmental
decision making altogether. Not many jurisdictions do support the intervenor
funding model, where the necessary financial resources are provided in advance
of a hearing. However, the Province of Ontario, in Canada, did adopt the model
for a number of years, under the Intervenor Funding Project Act 1989,
before it was later repealed by a change of
government.[41] The Canadian
experience illustrates how this sort of model is more likely to promote public
participation and better environmental decision-making. The initiative largely
originated in a decision in Re Regional Municipality of
Hamilton-Wentworth,[42] made by
the Joint Board, which at the time, was chaired by this writer.
The decision
concerned an application by the Regional Municipality of Hamilton-Wentworth for
the approval to construct an eleven-kilometre highway that would connect two
provincial highways in the city of Hamilton, Ontario. The provincial government
required the proponent obtain a number of environmental and planning approvals
before construction. Two separate citizen groups brought action against the
developer and called for financial assistance to be able to participate
effectively in opposition to the proponent. Although it was a controversial
decision, the Joint Board awarded the two intervenors a total of $75,000 as
‘costs in advance,’ to be paid by the
proponent.[43]
The focus of the
decision was on the quality of environmental decision-making, trying to balance
the perceived inequity between the positions of the parties, to enable more
informed outcomes. Without such a scheme, the essence of the hearing process
would be negated, that is, the provision of an open forum where citizens could
effectively participate in the decision-making process, and where decisions are
based on the evidence given by both the proponent and the
opposition.[44]
The decision was
met with immediate protest and controversy from within groups such as the media,
the government and the corporate sector. The proponent, who was ordered to fund
the opponents’ case in advance, filed for a judicial review of the
decision. The judicial review was initially heard by the Ontario Divisional
Court, a Division of the Ontario Supreme Court, now known as the Superior Court
of Justice. The question before the court was primarily whether the Joint Board
had exceeded its jurisdiction under the relevant statute when it awarded costs
in advance. The Divisional Court concluded the Joint Board did not have the
power to award intervenor funding, no matter how desirable effective opposition
might be.[45] This decision was
disappointing because it once again failed to perceive environmental litigation
differently from other forms of litigation, and treated environmental approval
proceedings from a costs perspective as any other civil proceeding. To a large
extent, the very significant public interest component was marginalised.
The
year after the Divisional Court’s decision, Ontario saw the first change
of government in over four decades. The new Attorney General had been counsel
representing one of the intervenors in the judicial review the year before, who
argued in favour of upholding the Joint Board’s decision. The new
Government enacted the Intervenor Funding Project Act
1988.[46] The government was
careful to build into the Act appropriate eligibility criteria and
accountability provisions to overcome the potential for abuse. For instance, the
relevant funding panel was to determine what proponents should provide
funding,[47] and how much funding;
and funding proponents had the right to object to the making of a funding
order.[48] Furthermore, Section 7 of
the Act provided detailed eligibility criteria for intervenor funding. For
example, the issue must affect a significant segment of the public, and the
issue must not just have been a private
interest.[49] In addition, the
funding panel was to consider a number of points, such as whether the intervenor
had adequate resources to present their
interest;[50] whether the intervenor
had made reasonable efforts to raise funds from other
sources;[51] whether the intervenor
had an established record of concern and commitment to this
interest;[52] and whether the
intervenor had a clear proposal for their use of any funds which might have been
granted.[53] In determining the
quantum of the funding, one of the responsibilities of the funding panel was to
deduct from the award funds which were reasonably available from other
sources.[54] Such provisions were
designed with the aim to overcome potential for abuse. Any inappropriately
received funds could be ‘clawed back’ to the
proponent.[55]
Although
controversial, the Act made a significant achievement in regards to citizen
involvement, and in the opinion of this writer, resulted in a significant
improvement in the quality of the environmental decisions being made. It put the
concept of winners and losers, in the context of environmental and public
interest litigation, to rest.[56]
The legislation presents us with a novel environmental initiative, which could
and some would argue should be considered for adoption in Australia and other
countries. It would enhance environmental governance in a number of respects,
namely, access to information, public participation, and justice. More balanced
environmental decision-making would be the most direct result.
Alternative
ideas for funding and citizen representation and participation have been
suggested by those who do not support the implementation of the intervenor
funding model. For example, there is the public defender model. The
Environmental Defenders Office established in each state and territory in
Australia was intended to represent the public interest in an environmental
context. The offices that exist in New South Wales and elsewhere have over the
past twenty years, changed their focus, and in some cases, have had their
funding reduced substantially. Jurisdictions that have adopted the public
defender model, although purporting to represent the public interest, do not
substantially enhance the citizens’ ability to participate directly in
environmental decision-making.[57]
Therefore, the public defender model does not promote good environmental
governance as well as the intervenor funding model does.
The extension of
legal aid schemes to work with environmental litigation, and increased funding
to legal aid offices is also a suggested alternative to intervenor funding.
Legal aid, however, suffers from similar disadvantages to the concept of
awarding costs after the fact.[58]
Legal aid does not provide the funding when it is most necessary, at the
preparatory stage. Furthermore, the fees and general funding provided for legal
aid schemes are at rates which are seriously unattractive to many experienced
lawyers. Those attorneys who do participate in such cases ultimately end up
funding the costs of the litigation themselves in
advance.[59]The means tests that
usually accompany legal aid schemes are often too restrictive, therefore
preventing a large proportion of the public from gaining access. The
disadvantages of the legal aid model are complex, and display its poor ability
to enhance good environmental governance.
The rationale behind the intervenor
funding model is sound. As part of good environmental governance, participation
must be meaningful, and not merely visible. Giving deserving opponents the funds
needed to present their cases would overcome many of the difficulties
experienced in the current system. The loosening of standing requirements are
commendable in the sense that they allow for participation of some citizens and
groups, however as mentioned at the outset of this paper, the extra step of the
provision of funding is necessary to avoid citizen involvement being
participatory tokenism.
Environmental litigation needs to be viewed
differently to other forms of litigation, primarily because the environment does
not have a voice of its own. It often needs committed representatives,
independent from the government. The cost of providing adequate funding usually
pales in comparison to the profit made by the proponent’s development. For
example, in the time during which the Intervenor Funding Project Act was
in use in its jurisdiction, the amount of funding provided under this regulation
on a case by case basis was estimated to be approximately 1 to 2% of the
development project cost. That is a small price to pay to achieve a better
outcome in the context of environmental decision-making and enhanced public
participation. Unless adequate resources are provided for, the real cost will be
suffered by the public at large, measured by a poorer quality of environmental
decisions. Such decisions are usually a result of the imbalance of information
and evidence between proponents and opponents.
PUBLIC PARTICIPATION IN
ENVIRONMENTAL DECISION-MAKING IN DEVELOPING NATIONS OF THE SOUTH
PACIFIC
By way of a contrast to the more developed Australian and
Canadian legal environmental context, the developing Nation States in the South
Pacific such as Fiji continue to face significant challenges or impediments to
achieve good environmental governance. In particular the command and control
style of environmental legislation enacted by the colonial predecessors, has
been ineffective in providing for public participation in environmental
decision-making processes. In the past inadequate levels of planning, technical
expertise, financial and human resources has not enabled planners to appreciate
the extent and likely consequences of certain resource
uses[60], which has in turn
constrained the ability of environmental knowledge and awareness to filter down
to the grass roots community level in the form of capacity building, training
and education. A fundamental issue is the dominance of social and economic
interests in policy development that has been at the expense of environmental
concern. Therefore, to a great extent it has been the Environmental NGO’s
such as the South Pacific Action Committee for Human Ecology & Environment
(SPACHEE) engaging with the community, that has educated the public through
environmental programs on the important issues of sustainable use of
biodiversity in social and economic development.
The enactment in 2005 of the
Environment Management Act (Fiji) provides through certain
provisions the opportunity to redress some of the above mentioned deficiencies,
namely public participation in the context of environmental decision-making and
for the potential future development of good environmental governance. The Act
implements some of the provisions of Fiji’s National Biodiversity
Strategy and Action Plan (NBSAP) in accordance with the CBD Compliance
Report 2002[61], although there
is also a Sustainable Development Bill currently under
review[62], which will be essential
for integrated natural resource management.
The key provisions for public
participation in environmental decision making in the Environment Management
Act 2005 (Fiji) include: section 27(1) that requires an approving authority
for a development application to undertake an Environmental Impact Assessment on
whether the proposal is likely to cause a significant environmental or resource
management impact. This includes taking into account any public concerns
relating to the development activity or undertaking (section 27(2)(d)), and
conducting a public hearing in the area of the proposed development. In addition
a proponent may be required to invite public comments on the report at the
proponents cost, in the manner prescribed by regulations (section 30(2)) and
further to allow the public to inspect the Environmental Impact Assessment
(section 30(3)). The potential for good environmental governance is promoted in
section 31(1), which may require a cash bond to be deposited into a trust fund
to secure against the probable cost of mitigating environmental damage in the
area of proposed development and its surrounds.
Section 54(1) of the Act is
a significant provision, it enables “Any person” to institute
proceedings in a court to compel the performance of the Minister, a statutory
authority or government department its functions under the Act, this includes
carrying out Environmental Impact Assessments under section 27. In the past
there does not appear to have been any attempts to force local authorities in
Fiji to perform their legal duties in relation to the enforcement of pollution
laws, nor has the Land Conservation Board in the past prosecuted anyone for poor
agricultural land management
practices[63], and there has been
clearly a need for greater incentives for better husbandry practices.
However, section 54(1) may not help to overcome the fragmented nature of
environmental responsibility, when there are at least 14 different ministries,
statutory bodies or other agencies and at least 25 other Acts and numerous ad
hoc committees, operating without adequate implementation of integrated
environmental management
practices[64]. This fragmentation
has in effect created loopholes in the law allowing unsustainable development
practices to occur. It is essential that for section 54(1) to operate
effectively that the public and concerned NGOs know in whom responsibility is
vested for the purpose of enforcing their compliance with the Act.
The Act
also provides a system of monetary reward for the public under section 60
for the reporting of breaches of development permits or conditions that may help
to overcome the entrenched negative public attitudes towards the enforcement of
environmental offences[65]. Further,
one of the objectives of Fiji’s NBSAP is the second focal area of
“Improving our
Knowledge”[66]. Its aim is to
improve biodiversity studies and the value of traditional ethno-biological
knowledge in formal educational and professional curricula. This raising of
public awareness in conjunction with the recognition of the publics
environmental rights under the Environment Management Act 2005 (if they
are made sufficiently well known), will make it possible to provide the
political impetus for formulating and implementing appropriate environmental
protection, environmental management policies and public participation in
environmental decision-making for good environmental governance.
The
legislative measures in the Environment Management Act 2005 (Fiji) like
section 475 of the Environment Protection and Biodiversity Act 1999 (Cth)
in Australia offers an opportunity for individuals and groups concerned with the
environment to defend it against the legislation. However, without an
Intervenor Funding Model as in the Canadian legal system, or an ability
to obtain legal aid to support the granted locus standi under the Act,
the opportunity for public participation in decision-making may be offset by a
significant imbalance in the financial resources available to both the
developers and the government bureaucracy to defend a cause of action by
concerned citizen groups.
Another inhibiting factor may be the inability to
combat false and misleading environmental information because there is no
general right of access to freedom of information in Fiji, as is the case in
Australia and Canada, for example, under the Commonwealth Freedom of
Information Act 1982 and the Access to Information Act (R.S. 1985, c.
A-1) respectively, to enable concerned citizens and NGO’s to
scrutinise the actions of public officials and government departments. This is
despite the fact that such a right is entrenched within section 30 and section
174 of the Fiji Constitution Act 1998 that prescribes that:
As soon as practicable after the commencement of this Constitution, the Parliament should enact a law to give members of the public rights of access to official documents of the Government and its agencies. [67]
Accountability and good governance can only be achieved if members of the public have access to information...[which] is essential to the proper functioning of a democracy.[68]
Therefore, this lack of information and financial resources
to commence an action in court may further perpetuate the public’s silence
on issues concerning the environment because of an inability to articulate
concerns as well as unwillingness and inability to act on them, and will
continue to hinder the development of good environmental governance.
The
government of Fiji stated in the CBD Compliance Report 2002 that
Article 8J of the Convention on Biological Diversity is a high
priority and adequate resources are available for meeting its objectives and
recommendations. However, indigenous Fijian’s remain marginalised and
impoverished despite the transition to
independence[69], as legislation has
commonly ignored traditional methods of resource management and traditional
conservation methods.
This marginalisation is further compounded by the
fact that although 50% of the population are indigenous people who own more than
80% of the land and natural
resources[70], the control and
administration of all native land is vested in the Native Land Titles Board as
trustees under section 4 of the Native Land Trusts Act (Fiji)
1940,[71] and sustainable land
utilisation has tended to give way to more aggressive exploitation for cash
revenue. It was held until recently that there was no standing for and
individual to institute proceedings against the NLTB for the native landowners,
over a failure to administer the land and resources for the benefit of native
Fijian people.[72]
However, the case of Native Land Trust Board v. Narawa
[73] not only overturned the
existing law on the issue of standing to sue, but also has raised issues of
fundamental importance to the native traditional land owners, namely the
potential for the law of Fiji to recognise rights and interests under customary
law and thus the potential for indigenous participation in environmental
decision making.
The facts in Native Land Trust Board v. Narawa were
that two agreements had been entered into by the NLTB and the Conservator of
Forest with Timbers (Fiji) Limited for the felling, taking and selling of
timber, that provided inter alia, for the payment of royalties and fees. The
plaintiffs in the case were members of the Yavusa Burenitu who claimed
declarations that Timbers (Fiji) was in breach of these Agreements; that the
NLTB was not acting as required by the Native Land Trust
Act in that it failed to administer them for the benefit of
the Fijian owners, and also that it was in breach of its fiduciary duties to the
members of the Yavusa Burenitu by condoning and supporting the continuing
breaches of Timbers (Fiji).
The primary trial judge in the High Court of Fiji
applied the existing authorities and dismissed the action instituted by the
Yavusa Burenitu stating that:
The composition, function and management of a mataqali and the regulation of the rights of members in relation to each other and to persons and things outside it are governed by a customary law separate from and independent of the general law administered in this court.[74]
The
Yavusa Burenitu then appealed to the Court of Appeal. In its judgement,
the Court of Appeal approved the decision of Cullinan J in Waisake Ratu No
2. Who considered that the mataqali or a tokatoka were not
institutions alien to the applied law of Fiji.
In addition, the cases had
made it clear that the person seeking to bring an action in a representative
capacity did not have to obtain the consent of those whom he purported to
represent. And although land holdings might be individual in places, such
individual rights were nonetheless held under communal proprietary
rights[75]. The Court of Appeal then
referred to various authorities relating to the common law recognition of
customary title including Re Southern Rhodesia [1999] at 211; Amodu
Tijani v. The Secretary of Southern Nigeria;
[76] and Mabo v. The State of
Queensland.[77]
The Court of
Appeal concluded that if the agreements had not been properly administered and
Timbers (Fiji) were guilty of breaches for which damages had been payable but
had not been claimed; the members would also have a common grievance. Whether
that was so in fact could only be determined at trial.
In response to the
Court of Appeal decision the NLTB sought special leave to appeal the decision in
the Supreme Court. The Supreme Court judges at [40] stated that there was no
doubt that the present case could give rise to far reaching matters of law and
matters of great public importance concerning whether customary communal
entitlements were recognised by the common law, and the effect of existing
statutory provisions in relation to such rights.
The important questions of
law and fact that need to be decided in relation to the recognition of Native
Fijian’s customary law, within the Fijian legal system, also has the
potential for positive and far reaching consequences for good environmental
governance. This is because decisions which are made concerning land use and
practice by those who possess a wealth of traditional ecological knowledge,
promotes an equitable and sustainable system of environmental management for the
future social and economic development of the Nation of Fiji as a whole.
Therefore, to simply continue to impose command and control policies and
legislation from above, without regard to indigenous as well as community
support and input at the grass roots level, will prove to be as ineffective as
past practices to stem environmental degradation and unsustainable land and
water resource management practices, and fail to achieve good environmental
governance.
INDIGENOUS RIGHTS AND PARTICIPATION AS IMPORTANT ASPECTS OF ENVIRONMENTAL GOVERNANCE
Recognising and facilitating the contribution of Indigenous groups in
matters of conservation and sustainable development is very important in regards
to the promotion of good environmental governance. A number of international
hard and soft law instruments deal with this issue, but generally indigenous
rights to land and the use of natural resources have only received small
recognition. The International Labour Organisation’s Convention (No.
169) Concerning Indigenous and Tribal Peoples in Independent
Countries[78] was the first
international law instrument designed for the protection of Indigenous rights
and interests. Another expression of the need to account for Indigenous
interests can be found in Article 8(j) of the UNCED’s Convention on
Biological Diversity.[79]
This Article states that signatories to the convention are to ‘respect,
preserve and maintain knowledge, innovations and practices of indigenous and
local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity.’
Furthermore, although it is still making its way through the UN process, the
Draft Declaration on the Rights of Indigenous
Peoples[80] provides for the
right to indigenous
self-determination,[81] and also
articulates rights in regards to land, resources, water, seas, biological
resources and intellectual and cultural property. Article 15 of the Draft
Declaration recognises the rights of Indigenous peoples to the natural
resources on their lands, and to participate in the use, management and
conservation of these resources.
Although these expressions of Indigenous
rights and interests have signalled a move forward, Indigenous commentators have
criticised the approaches taken as focusing on participation and consultation,
rather than clear property rights, and rights to
self-determination.[82] A
participation-based framework is a good move forward, but it must not be seen as
an alternative or a substitute to a rights-based framework. Caution must be
exercised in order to avoid treating Indigenous communities as a resource, or a
means to the end of better environmental management. This is why participation
rights in sustainable practices and wildlife management cannot be separated from
the granting of other rights, namely property
rights.[83]
There is a perceived
conflict between Indigenous interests and conservation efforts. For instance,
international schemes focusing on conservation often concern the resources, or
species that are the traditional subjects of hunting and gathering practices. It
can be argued, however, that Indigenous peoples have been using these resources
for thousands of years, and that the practice is sustainable. The balance
between natural and cultural heritage is often difficult to
maintain.[84] A good approach to
environmental governance must consider these factors, and attempt to develop a
balance, or a compromise. Indigenous co-management schemes are an example of an
endeavour to overcome this obstacle.
In many states including Australia,
there has been an increased trend towards developing agreements and contractual
relationships between Indigenous organisations and public sector funding
agencies, on behalf of the government. These agreements have come in the form of
land and cultural heritage management agreements; joint management agreements
for protected areas; and Indigenous land use agreements under the Native
Title Act 1993 (Cth).[85] They
aim to facilitate Indigenous participation, responsibility and control over the
land.
The turning point in Australia’s approach to Indigenous land
rights was the case of Mabo v. Queensland (No. 2)
(1992).[86] In this case, the
High Court of Australia recognised the existence of native title, that is, the
right of Indigenous people to the use and enjoyment of their ancestral lands, in
accordance with their traditional customs. The implications of the case did not
turn out to be as massive as was originally predicted. However, Mabo and
the Native Title Act 1993, because they did recognise native title to
land and marine resources, have lead to the enhancement of the rights of
Indigenous people to be considered as stakeholders in a range of land management
issues.[87] This has meant improved,
yet imperfect recognition of Indigenous interests.
The key environmental
regulatory instrument at the Federal level in Australia is the Environment
Protection and Biodiversity Conservation Act 1999 (Cth). Its jurisdiction is
over Commonwealth lands and matters of ‘national environmental
significance.’ Various provisions in the Act recognise the important
contributions to be made by Indigenous Australians to conservation and
sustainable development. These provisions were a result of the negotiating
processes of the houses of Federal parliament, giving insight into how balance
of power considerations can be important for environmental governance, and
minority interests. One of the objectives of the Act is the utilisation of
Indigenous knowledge, and the involvement of the owners or holders of that
knowledge. In regards to co-management schemes, there is provision for a
majority of the members of Management Boards to be Indigenous. Special rules
for co-management of Commonwealth reserves in the Northern Territory and Jervis
Bay Territory are established. Finally, the Act allows for the continuation of
traditional hunting methods and ceremonial and religious activities by
Indigenous communities.[88]
Partnership and co-management arrangements in Australia and elsewhere
recognise that particular Indigenous groups have a special and meaningful
contribution to make in conservation efforts, and environmental management
regimes generally.[89] In other
words, Indigenous groups and organisations have an integral role to play in
environmental governance.
Co-management is a system of environmental
management, where aspects of both the Indigenous system and the State system are
incorporated. It involves the sharing of power between the government and the
community organisation.[90]
Management that incorporates Indigenous participation, but not power sharing, is
referred to as consultative
management.[91] Care must be
taken to distinguish co-management with collaborative management, which
once again, is about participation and transparency, but is not associated with
the devolution of government power to the stakeholders
involved.[92]
Collaborative and
co-management schemes are strong features of modern environmental governance, as
they are meant to provide Indigenous occupants of traditional lands a voice in
regards to the management plans of the land. Examples of these schemes suggest
they are a good development in terms of governance, yet there are a number of
ways in which they could be improved.
The joint management model for
protected areas such as national parks is the most significant for Australia,
even though Indigenous groups are increasingly asserting the need for
self-government and complete control, over the shared approach. Indigenous
co-management or joint management emerged as a concept in the late 1970s and
early 1980s, as legal recognition of Aboriginal rights to traditional lands
grew.[93]
There are a variety of
different joint management approaches in operation in Australia currently, some
legislated by the Federal government, and others established by state schemes.
Each plan or agreement is distinct from the others, with varying levels of
resources, Indigenous management and
involvement.[94] The first joint
management scheme in Australia, set up in 1981, was Gurig National Park. It was
jointly managed between traditional Aboriginal owners and a government
conservation agency. The Park’s Board of Management had an Aboriginal
majority; the park was not leased back to the government; and an annual fee was
paid to the traditional owners of the land for maintenance and use of the
land.[95] Other models, such as the
Uluru-Kata Tjuta National Park model and the Queensland model (state models),
adopt the lease back scheme, where the land is leased back to the government,
instead of giving full ownership.
Some commentators have been critical of
the lease back approach, and this issue will be discussed shortly. Even though
joint management schemes do not provide property rights, there have been
positive results from their implementation. For instance, the traditional
Aboriginal owners have been able to access and use the resources of the National
Parks Services (NPS) and other government conservation agencies; and conversely,
the National Parks Services have been able to access increased knowledge by
involving Indigenous groups in
management.[96] Finally, the
agreements can provide some assistance in educating non-Indigenous Australians
in regards to Indigenous culture, values and
issues.[97] These characteristics
within a system are integral to good environmental governance. For instance, the
Aarhus Convention[98] cites
resources, access to information, education and awareness as the most important
elements of environmental governance.
An example of a Federal joint
management agreement is that of Kakadu National Park, in the Northern Territory,
Australia. The agreement is made under the Environment Protection and
Biodiversity Conservation Act of the Commonwealth. The park has been
included on the World Heritage List, under the World Heritage Convention.
It is believed that Aboriginal people have lived within Kakadu continuously for
over 50,000 years.[99] Under this
agreement, the Board of Management, with 14 members in total, comprises of 10
adult Aboriginal people nominated by the traditional owners of the land, 3
representatives from various government agencies and one prominent
conservationist.[100] The terms of
the lease also provide for the promotion of the interests of the Aborigines and
the development of cross-cultural training programs for the workers on behalf of
the government agencies in the
park.[101] Co-management or joint
management schemes like this one are the most significant development in
Australia in regards to Indigenous participation in conservation and sustainable
development efforts.
There are other forms of agreements or programs in
Australia between the government and traditional Indigenous owners of lands, to
facilitate participation, which are also part of Australia’s approach to
environmental governance. For example, there are financial assistance agreements
under the Natural Heritage Trust of Australia Act 1997 (Cth), to support
conservation efforts. Indigenous communities have recently gained increased
access to funds under the Natural Heritage Trust, however, the argument has been
raised that the funds they access are grossly inadequate, proportionately, to
the amount of land they look
after.[102] Furthermore, there is
the Indigenous Protected Areas program, where the Commonwealth provides funds on
the condition that landholders agree to use their land for the aim of
conservation of biodiversity. An Indigenous Protected Areas Advisory Group
provides advice to Environment Australia about the administration of the
Indigenous Protected Areas
program.[103] The main concerns
with these initiatives are that funding is not always secure; progress is
dependent on political will; and that generally, the policies are focused on the
short term.[104]
Australian
governments, at both the federal and state levels, have been reluctant to give
full ownership and control to traditional Indigenous owners of land, preferring
co-management arrangements. Australia could therefore learn a lesson from the
African experience with the Communal Areas Management Plan for Indigenous
Resources (the CAMPFIRE Project) in Zimbabwe. The recent trend in Africa
has been towards agreements in the form of Community Wildlife Management (CWM),
which encourage conservation through granting self-determination and full
ownership. By giving the communities ownership, they are given the most
meaningful form of representation in the decision-making process; they are able
to derive economic benefit from the use of the land, in terms of trade and
tourism; and they will have more of an incentive to manage the land in a
sustainable way.[105] Australia
has adopted some schemes at the local and regional level that resemble the CWM
model from Zimbabwe, for instance, the Indigenous peoples’ use and
management of terrestrial vertebrates and some marine species, dugongs and
turtles.[106] However, the main
approach to wildlife management in Australia remains co-management, and this
could be limiting the potential for better environmental governance.
It will
be very difficult in Australia to convince governments to devolve ownership of
wildlife to Indigenous communities. This is due to the perception that wildlife
is part of the national heritage, and it therefore must be protected and
controlled by the government.
[107] If the CWM model was to be
adopted more readily, however, there is the chance it could be unsuccessful
where Indigenous peoples are not willing to participate and manage the wildlife,
such as in areas of extreme poverty, where conservation could interfere with the
potential for economic
development.[108]
In addition,
it cannot be assumed that Indigenous communities do have the required knowledge
and resources, such as funding, to successfully manage the wildlife. The
traditional knowledge may no longer be possessed by the community, due to
societal and cultural change.[109]
These considerations may then necessitate some sort of government involvement,
even at a minimum level, in the management of wildlife. Funding is certainly the
most important role for the government here.
Joint management in Australia
has taken a somewhat minimalist approach in terms of granting secure property
rights to Indigenous communities. Joint management has tried to recognise
Indigenous concerns and interests, yet it must be realised that the right and
ability to participate meaningfully cannot be separated from other rights, in
particular, property rights and the right to self government. Australia’s
joint management schemes have achieved some positive results in terms of
conservation and environmental governance generally, but there are aspects of
the schemes which are unnecessary or need improving.
The lease-back
arrangement is paternalistic, and it detracts from full legal recognition of
Indigenous ownership of traditional lands. The lease-back arrangement is not
necessarily required for effective co-management. Contractual agreements between
the government and the relevant Indigenous groups, with terms and conditions
concerning management, would be
sufficient.[110]
Moreover,
adequate resources are crucial to the success of these schemes. Indigenous
communities struggle to meet their joint management lease obligations without
the necessary financial support. As a final point here, despite there often
being an Indigenous majority on Joint Management Boards, the government still
has ultimate control via the role of the minister and through funding
mechanisms.[111] Nevertheless, the
existence of the joint management system is better than its non-existence. It
currently provides the minimum conditions for
cooperation,[112] and it will not
be able to grow without the move towards adopting a rights-based approach,
instead of continuing to focus on Indigenous ‘interests’ and
participation.
CONCLUDING COMMENTS
The concept of environmental governance is primarily about how
to reach environmental goals, such as conservation and sustainable
development. Analysing approaches to environmental governance then requires a
study of the policies and structures in place that determine how power is
exercised and how environmental decisions are made. Most importantly, we must
observe the ways in which citizens, community groups and non-government
organisations participate and keep the authorities accountable. Participation of
stakeholders, for example, Indigenous communities; access to information;
adequate funding; and government transparency and accountability are crucial to
the development of good environmental governance.
As an aspect of citizen
participation and responsibility, a good approach to environmental governance
would be encouraging the avoidance of unnecessary and expensive litigation. It
is beyond the scope of this paper to consider the efficacy of environmental
mediation as opposed to environmental litigation. Environmental mediation even
in complex cases involving a large number of stakeholders can have an important
role to play in resolving the less contentious issues and thus considerably
shortening the litigation proceedings with significant consequential costs
savings. In this writer’s experience, however, environmental mediation is
rarely successful as an alternative method of dispute resolution particularly
where there is a significant public interest component at stake. In such cases,
it is often necessary for an apolitical, independent court or tribunal to
adjudicate and frequently impose a decision where consensus is not achievable.
Proponents of potentially damaging projects should be encouraged to engage in
conversation with the public from a very early stage in the proposal.
Deliberative mechanisms, such as joint meetings or seminars, where
information is provided to the public and open debate is facilitated, could
foster this sort of relationship. Concerned members of the public would be given
the chance to respond, and to discuss matters at very early stages, which could
prevent further disputes later on. Mechanisms for conversation with developers
or proponents are important for environmental governance, as concerned citizens
or groups can be given the chance to speak up, before resorting to litigation.
Moreover, this relationship will help those who are concerned understand the
point of view of the developer and the plans of the project very early on,
instead of hearing the proponent’s perspective in court. These are ways of
mitigating the impacts of such disputes on the legal system.
Finally, the
objective of good environmental governance and the means of implementation are
domestic responsibilities. International hard and soft law instruments play an
important function in raising awareness, providing guidelines and fostering
accountability. Lessons can be learnt from the approaches to environmental
governance in other jurisdictions, for example, Ontario’s intervenor
funding experience, and Zimbabwe’s Community Wildlife Management scheme.
The recent Native Land Trust Board v.
Narawa[113] case in Fiji may
indeed point the way towards a more enlightened and long overdue approach with
respect to customary law's position within a common law legal system. Good
governance is dependent on there being adequate financial and technological
resources, and the meaningful participation of stakeholders. In reference to
Indigenous communities, effective participation and management of the
environment cannot be separated from other rights, such as to property and
self-determination. Participatory tokenism must be avoided at all costs.
An active and aware citizen population can lead to better and more balanced
environmental decision-making. Prioritising the protection of the environment
can lead to better quality of the environment. A healthy environment means we
are more likely to benefit from economic prosperity. In this sense, poverty
eradication and the protection of the environment are interrelated. The benefits
of environmental protection are unlimited: we can appreciate the aesthetic
beauty of nature, experience health benefits, and have some peace of mind that
future generations will also have access to these benefits.
[*] Professor and Director,
Centre for Environmental Law, Macquarie University, Sydney Australia.
** The
author is indebted to his student research assistants, Jane Gribble and Nicholas
Hughes, for their dedicated and enthusiastic assistance in the preparation of
this paper.
[1] The Earth
Charter (2000) The Earth Charter Initiative,
<http://www.earthcharter.org/files/charter/charter.pdf> (Accessed
4 November 2005).
[2] John Graham,
Bruce Amos and Tim Plumptre, Governance Principles for Protected Areas in the
21st Century, 2003, World Parks Congress 2003, Durban,
iii.
[3] John Scanlon and Francoise
Burhenne-Guilmin (eds.), International Environmental Governance- An
International Regime for Protected Areas, 2004,
2.
[4] Ibid,
1-2.
[5] Michael Jeffery, ‘An
International Regime for Protected Areas’ in Scanlon and Burhenne-Guilmin
eds., above n 3, 11.
[6] (1992)
United Nations Department of Economic and Social Affairs, Division for
Sustainable Development,
<http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm>
(Accessed 4 November 2005).
[7] (2004) 3rd ed, IUCN The World
Conservation Union.
[8] United
Nations Economic Commission for Europe, Convention on Access to Information,
Participation in Decision-making and Access to Justice in Environmental
Matters, opened for signature 25 June 1998 in Aarhus, Denmark; entered into
force 30 October 2001,
<http://www.unece.org/env/pp/documents/cep43.e.pdf> (Accessed 4
November 2005).
[9] Ibid,
see Preamble, paragraphs 7 and 8. The linkage between environmental rights
and human rights is further articulated in the stated objective of the
Convention (Article 1) as follows: ‘In order to contribute to the
protection of the right of every person of present and future generations to
live in an environment adequate to his or her health and well being, each party
shall guarantee the rights of access to information, public participation in
decision-making, and access to justice in environmental matters in accordance
with the provisions of this
Convention.’
[10] Ibid,
Article 4 (3) (a).
[11] Ibid,
Article 4 (3) (b).
[12] Ibid,
Article 4 (3) (c).
[13] Ibid,
Article 4 (4) (c).
[14] Ibid,
Article 4 (4) (e).
[15] Held in
Lucca, Italy, 21-23 October
2002.
[16] Meeting of the Parties
to the Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters, Draft Lucca
Declaration, 2002,
<http://www.participate.org/conferences/mp.pp.2002.crp.1.e.pdf> (Accessed
4 November 2005), paragraphs 14 and 27.
[17] Ibid, paragraph
1.
[18] Jeffery, 2004, above n 5,
31.
[19] Peter Nygh and Peter
Butt (eds.), Butterworths Concise Australian Legal Dictionary, 1998, p.
404.
[20] In recent years, a
number of important declarations and principles developed by the international
community such as ecologically sustainable development, the precautionary
principle, and the principle of inter-generational equity (usually categorised
as soft law) are the subject of such widespread acceptance and usage by
nation-states, that recognition of some of these principles as customary
international law (and therefore, binding) may not be far
off.
[21] Graham, Amos and
Plumptre, above note 2, 7.
[22]
Michael Jeffery ‘Intervenor Funding as the Key to Effective Citizen
Participation in Environmental Decision-Making: Putting the People Back into the
Picture’ (2002) 19(2) Arizona Journal of International and Comparative
Law, 18.
[23] Environment
Protection and Biodiversity Conservation Act 1999 (Cth); See section
475.
[24] 1 Ch
109.
[25] Ibid, at
[114].
[26] (1980) 146 CLR
493.
[27] Ibid, per Gibbs J, at
[530].
[28]
Ibid.
[29]
Ibid.
[30] Chris McGrath, An
Introduction to the Environment Protection and Biodiversity Conservation Act
1999 (Cth), 2001, Community Biodiversity Network,
<http://nccnsw.org.au/member/cbn/projects/upload/EPBCActintroduction_McGrath.pdf>
(Accessed 4 November 2005),
16.
[31] Various jurisdictions
have attempted to address this critical issue through a variety of approaches.
For example, the Land and Environment Court of New South Wales adopted a policy
of taking a hard line on applications for security for costs, emphasising the
importance of the public interest nature of the litigation. An equally forceful
line was taken in considering whether or not to require an applicant for an
interim injunction, to give to the court an undertaking as to damages and
perhaps, most importantly, to adopt the position that in the context of genuine
public interest litigation, costs should not automatically follow the event. The
latter development was endorsed by the High Court of Australia in upholding the
principle that the nature of public interest litigation was a relevant factor in
exercising the cost discretion: Oshlack v. Richmond River Council (1998)
193 CLR 72 (HCA). Other approaches have included the establishment of
Environmental Defender Offices (EDOs.) EDOs now exist in each Australian state
and territory. Furthermore, a National Association of Environmental Defenders
Offices has recently been established to deal more effectively with
environmental issues of national importance. In some jurisdictions legal aid is
provided for certain types of environmental proceedings, and in a few
jurisdictions, there have been initiatives involving the provision of statutory
intervenor funding.
[32] Roger
Douglas, Douglas and Jones’ Administrative Law, 2002, 4th Ed.,
422.
[33] 189 CLR 579; 146 ALR
248 High Court of Australia.
[34]
Ibid, per Brennan J, at
[600].
[35] Dixon J, in
Australian Railways Union v. Victorian Railways Commissioners (1903) 44
CLR 319, at [331].
[36] (1997)
152 ALR 83.
[37] Toohey J in
Oshlack v. Richmond River Council (1994) 82 LGERA 236 (The Land and
Environment Court) at [238]; Approved of by Kirby J (majority) in
Oshlack, above n 31, at
[115].
[38]
Ibid.
[39] Edwards K.,
‘Costs and Public Interest Litigation After Oshlack v. Richmond River
Council’ (1999) 21 Sydney Law Review, 681,
682.
[40] Jeffery, 2002, above n
22, 15.
[41] Ibid,
20.
[42] 51 O.R. (2d) at
23.
[43] Jeffery, 2002, above n
22, 20.
[44] Ibid,
21.
[45] Ibid,
28.
[46] R.S.O. 1990 c. I.13.
This Act was repealed in
1996.
[47] Ibid, Section 4
(2).
[48] Ibid, Section
6.
[49] Ibid, Section 7 (1) (a)
and (b).
[50] Ibid, Section 7 (2)
(c) .
[51] Ibid, Section 7 (2)
(d).
[52] Ibid, Section 7 (2)
(e).
[53] Ibid, Section 7 (2)
(g).
[54] Ibid, Section 7 (3) (c)
.
[55] Jeffery, 2002, above n 22,
32.
[56] Ibid,
33.
[57] Ibid,
19.
[58] Ibid,
18.
[59]
Ibid.
[60] “Existing
Institutions And Measures For Integrating Environmental Concerns Into
Development Planning And Decision-Making For Suva City”. Integrating
Environmental Considerations into the Economic Decision-Making Process, Vol. II
, Local/Provincial Level, the Pacific Islands, Fiji (Suva), United
Nations Economic and Social Commission for Asia and the Pacific
(UNESCAP).<http://www.unescap.org/drpad/publication/integra/volume2/fiji/2fjindex.htm>
(Accessed
4 November 2005).
[61] CBD Second
National Report 2002-Niue
<http://www.biodiv.org/doc/world/nu/nu-nr-02-en.pdf> (Accessed 4 November
2005).
[62] Ibid; Fiji National
Assessment Report 2003, Small Island Developing States Network, at
18.
<http://www.sidsnet.org/docshare/
other/20031230154545_Fiji_NAR_2003.pdf> (Accessed 4 November
2005).
[63] Fiji
Environmental Analysis: A Report on the Consultative Workshop, Findings and
Conclusions, Asian Development Bank 2004
<http://www.adb.org/Documents/Events/2004/Fiji-Environmental-Analysis/conclusions-recommendations.pdf>
(Accessed 4 November
2005).
[64]
‘Existing Institutions And Measures For Integrating Environmental Concerns
Into Development Planning And Decision-Making For Suva City’,
Integrating Environmental Considerations Into the Economic Decision-Making
Process, Vol. II , Local/Provincial Level, the Pacific Islands, Fiji
(Suva), United Nations Economic and Social Commission for Asia and the
Pacific (UNESCAP),
<http://www.unescap.org/drpad/publication/integra/volume2/fiji/2fjindex.htm> (Accessed
4 November 2005).
[65]
Above n 1.
[66] Above n 3, (
Conference of the Parties Decision V/17. Education and Public
Awareness).
[67] Citizens
Constitutional Forum: A Freedom of Information Law for Fiji, March 2004,
3.
[68]
Ibid.
[69] Taukei (Indigenous
Rights) and the New Face of Western Hegemony in Fiji, Lashley, Marilyn
E.
Howard University. Sixth Conference of the European Society for Oceanists
(EFSO)-Pacific Challenges: Questioning Concepts, Rethinking Conflicts. Marseille
(France), 6-8 July 2005.
[70]
Above n 6.
[71]
Sharma, Sunil., “The Control And Protection Of Native Lands In
Fiji”, 3 Journal of South Pacific Law Working Paper 6
1999.
[72] Meli Kaliavu v.
Native Land Trust Board (1956) 5 FLR 17; Naimisio Dikau No 1 & Ors v.
Native Land Board & Anor, CA No 801/1984; and Waisake Ratu No 2 v.
Native Land Development Corporation & Anor (1987) Civil Action No 580 of
1984.
[73] [2004] FJSC 7; Cbv
0007.02s (21st May, 2004)
<http://www.paclii.org/fj/cases/FJCA/2002/9.html> (Accessed 4 November
2005).
[74] Dikau No 1 &
Ors v. Native Land Board and Anor Civil Action No 801 of 1984.
[75] Markt & Co Limited
v. Knight Steamship Company Limited [1910] 2 KB 1021 at
1039.
[76] [1921] 2 AC
399.
[77] (No 2) (1992) 175 CLR
1.
[78] Adopted 27 June 1989 by
the General Conference of the International Labour Organisation, entered into
force 5 September 1991 <http://www.unhchr.ch/htm/menu3/b/62.htm> (Accessed
4 November 2005).
[79] (1992)
United Nations Environmental Programme,
<http://www.biodiv.org/welcome.aspx>
(Accessed 4 November 2005).
[80] United Nations High
Commissioner for Human Rights,
<http://www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/E.CN.4.SUB.2.RES.1994.45.En?OpenDocument>
(Accessed 4 November 2005).
[81]
Ibid, Article 3.
[82] Michael
Jeffery ‘Environmental Ethics and Sustainable Development: Ethical and
Human Rights Issues in Implementing Indigenous Rights’ (2005) 2
Macquarie Journal of International and Comparative Environmental Law
11.
[83] Craig D. and Ponce Nava
D., ‘Indigenous Peoples’ Rights and Environmental Law,’ in
Craig D., Robinson N. and Koh K. eds., Capacity Building for Environmental
Law in the Asian and Pacific Region: Approaches and Resources, 2002, Vol. 1,
34 .
[84] Michael Jeffery and
Donna Craig, Wildlife Management in Australia: Different Perspectives on
Indigenous Participation, 2004, Prepared for presentation at the 8th
International Environmental Law Conference, Sao Paulo, Brazil,
9.
[85] Garth Nettheim, Gary D
Meyers and Donna Craig, Indigenous Peoples and Governance Structures:
A Comparative Analysis of Land and Resource Management Rights, 2002,
378.
[86] 175 CLR
1.
[87] Marcus Lane and Allan
Dale, ‘Project Assessment in Australian Indigenous Domains: The Case for
Reform’ (1995) 2 (1) Australian Journal of Environmental
Management, 36.
[88]
Nettheim, Meyers and Craig, above n 67,
395.
[89] Graham, Amos and
Plumptre, above n 2, 5.
[90]
Donna Craig, ‘Recognising Indigenous Rights Through Co-management Regimes:
Canadian and Australian Experiences’ (2002) 6 New Zealand Journal of
Environmental Law, 13.
[91]
Ibid.
[92]
Ibid.
[93] Ibid,
47.
[94] Nettheim, Meyers and
Craig, above n 67, 400.
[95]
Ibid, 400-401. Refer to this source for further discussion of the different
models of joint management.
[96]
Ibid, 401.
[97] Ibid. See also
New South Wales National Parks and Wildlife Service,
<http://www.nationalparks.nsw.gov.au> (Accessed 4 November
2005).
[98] United Nations
Economic Commission for Europe, above n
8.
[99] Craig, 2002, above n
72, 50.
[100] Nettheim, Meyers
and Craig, above n 67,
402.
[101]
Ibid.
[102] Ibid,
403.
[103] Ibid,
409-410.
[104] Ibid,
423.
[105] Suchet, S (2001)
“Challenging ‘Wildlife Management’ Lessons for Australia from
Zimbabwe, Namibia and South Africa” in Jeffery and Craig, above n 66, 20.
[106] Jeffery and Craig, above
n 66, 21.
[107] Ibid,
26.
[108]
Ibid.
[109] Ibid,
27.
[110] Craig, 2002, above n
72, 55.
[111] Jeffery and
Craig, above n 66, 28.
[112]
Ibid, 58.
[113] Above n 73.