Ecologically Sustainable Development and the Protection of Biodiversity - Essay Example

ECOLOGICALLY SUSTAINABLE DEVELOPMENT AND THE PROTECTIONNOF BIODIVERSITY STUDENT NAME PROFESSOR’S NAME COURSE TITLE DATE Introduction In the recent past, society and nations embarked on the quest of ensuring that there is sustainable development. Global warming, deforestation and emissions of carbon dioxide into the atmosphere presents a great challenge to states not only Australia to protect the biodiversity and ecology of a particular nation. Climate change chief amongst environmental problems and concerns require quick approaches to find a solution to protect the environment. The decision making process in the protection of environment, involves a host of stakeholders. There is no person apart from man who can sufficiently advocate for the conservation and the protection of the environment. The regime of protection of biodiversity and ecology is rich in Australia. For instance the Land and Environment Court established in Australia in 1979 has been used to address issues of locus standi, who has a right to sue in cases of destruction of biodiversity as well as correcting erroneous decisions and precedent set by previous courts. This paper focuses on the ecologically sustainable development (ESD) as a principle that protects biodiversity and its consideration in the decision making process. It also highlights the role of the land and environment court as a decision make in biodiversity protection. Who can seek redress from the Court? In environmental law and protection, the areas of contention were whether a person not harmed by an act could have redress in a court of law. In many instances such as the case of Boyce v Paddington Borough Council [1903]1 Ch 109 a plaintiff must have incurred or suffered a special or peculiar damage to himself as a public right. The law during this period failed to recognize public interest litigation and environmental protection issues were not a main concern to the state. Similarly, in Australia Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493, Australian courts interpreted it to mean that a person must have a special interest in the subject matter of the action that surpasses intellectual or emotional concern. In the decision making process in relation to protection of biodiversity, little or no attention should be paid on whether the interested party has incurred injury, loss or damage. Environmental protection of biodiversity requires individuals to speak and defend for it and in instances where the legislation is inadequate then individuals need to protect the environment. The Environment Protection and Biodiversity Conservation Act [EPBC] 1999 (Cth) gives impetus for individuals and rights groups to file for judicial review, seek environmental remedies such as injunction for any breach of biodiversity and environmental law (McGrath, 2001). Public interest litigation provided for under section 475 of the Act is a positive indication that leads to better environmental decision-making and a committed citizenry who can be able to address environmental concerns in a court of law. In this regard, the Environmental Planning and Assessment Act 1979 (NSW) allows a person to approach the Land and Environment Court to enforce a breach on the law and apprehend any person breaching the law on the protection of biodiversity. The EPBC Act permits non-governmental organizations to seek redress for breach of environmental laws. In advancing better decision making framework in environmental governance, then proper funding of environmental activists and defenders would be an important way of enhancing environmental principles such as; participation, access to information and socio-economic justice. Intervention during proceedings to advance a greater interest in a court of law is allowable. In the case of Levy v. Victoria (1997)189 CLR 579 the court held that a person who is not a party to a proceeding but whose interest would be directly affected directly by the decision rendered then one can intervene in order to protect their interest that would be affected. The Ecologically Sustainable Development (ESD) In its objectives, EPBC specifies the main components of the ESD principle at section 3A; a) In the decision making process, the decision makers should integrate both long-term and the short-term economic, social and equitable considerations b) In any instance there is a serious threat or an irreversible environmental damage, the insufficiency of a scientific study should not be used to postpone a measure to prevent further environmental degradation c) The conservation of biological diversity and ecological integrity should be amongst the important consideration in decision-making. In the case of the Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272 the court considered the impact of the Activities both the direct and indirect impacts that flow from the project in cases where it would sufficiently cause an adverse consequence. In such an instance, a decision maker must discern the impact based on the context and the intensity. In the language of the EPBC Act, an environmental impact can be an event or circumstance which is a direct consequence of an action or the action is a substantial cause of that event or circumstance… an indirect consequence. In particular, the Act bars the Minister from acting inconsistently to Australia law and international obligations regarding to world heritage, ramsar wetland and threatening the migratory species (section 134 (3)). An EIA or Environmental Impact Assessment can act as decision-making tools since they give information about the project, foreseeable impacts and addressing potential challenges while undertaking the project. In approving a project, a Minister needs to be aware of the potential impacts both negative and positive about a project and the solution to the problems. Decisions made pursuant to a court order or judgment, need execution in a way that it does not affect the rights of other citizens. In any circumstance, the purpose of any environmental regulatory regime is to protect the environment and biodiversity; hence, the decision maker must be in a position to make the best decision. In a court of law, proper evidence of environmental degradation, pollution, destruction of biodiversity is presented to make the best decision. The case of Taralga Landscape Guardians Inc v Minister for Planning and Res Southern Cross Pty Ltd [2007] NSWLEC 59 involved the issue of a proposed wind farm established in the New South Wales. The local landowners and the community brought and objection since it would have an impact of both visual and noise. In making its final decision, the court held that public interest in promotion of renewable energy outweighed that of an interruption of the local landscape. In referring to the ESD principles, the court stated that in addressing environmental protection concerns, and then there is a complex intersection of political social and economic consideration. In the Taralga case, a common presumption was created that environmental laws be interpreted in consideration of local practice in order to address biodiversity issues. Purpose of EIA and EIS in Decision Making An Environmental Impact Assessment (EIA) is an environmental tool that “represents a systematic process for the examination and evaluation of the environmental effects of proposed activities that are considered likely to significantly affect the environment” (Bates, 2006). The importance of an EIA in achieving ESD is that it gives an equal consideration in the assessment of social, economic and the proposed activities impact. The EIA gives a detailed explanation of whether there exists a threat to damage, the evaluation, certainty and conclusive nature of scientific evidence, an informed decision on how to mitigate in cases of serious and adverse damage and shifts burden of proof to those who might harm the environment. An EIA is an important document to a decision maker since it gives sufficient information to make an important assessment of direct and indirect consequences. In decision-making, sufficient information is necessary in considering all matters that can cause irreversible damage. ESD and other Environmental Principles In any judicial proceeding relating to the protection of the environment, the environmental principles are an important factor in the decision making process. In the protection of biodiversity, the application of the ecologically sustainable development principle, precautionary principle and the inter-generational equity. The ecologically sustainable development principle is identified as a way of meeting the needs of Australian through protection of the environment and conservation. It is a way of ensuring that ecological processes that human life depend on , are maintained to increase the quality of life for now and the future generation. There are many reasons why one needs to protect the environment, and the precautionary principle asserts that insufficiency of scientific evidence should not be an excuse for not protecting the environment. In the decision making process, the precautionary principle lowers the threshold by which decision makers acknowledge the risks that might befall of environment (Nicolas, 2002). The applicability of the precautionary principle under the ESD principle implies that the courts can create and adapt to new common law principles to deal with the emergent environmental harms. In the case of Perre v Apand Pty Ltd (1999) 198 CLR 180 the interaction of ESD and the precautionary principles can operate to lower threshold in which the greenhouse emissions hence being more probable. In determining whether it is right to intervene, decision-making might involve the Court not imposing an indeterminate private liability for others that are of global public harm. What are the Challenges in Biodiversity protection? Amongst the chief challenges in the protection of bio-diversity is making a choice between a development worthy project and the protection of the environment. In the Bowen Basin case (2006) 232 ALR 510 ; the government failed to assess the impact of a new coalmine in meeting the objectives of the EPBC Act . The Minister concluded that the creation of the mines would not have a significant impact on environmental matters. In relation to a Sonoma project, the action was not controlled and the impacts on the World Heritage Areas were a speculation. In the decision of the court, they determined that the application if ESD is unclear and it cannot be applied in the decision-making process and there is no establishment that it caused serious or irreversible environmental damage (Ruddock, 2007). Conclusion Decision making in relation to protection of the environment is complex requiring strict observance of the law and procedures. The Land and Environment Court, in its role as a decision maker seeks to create precedents that conform to Australian obligations in international law as well as those of domestic law. The environmental principles in Australia as per the ESD principle are to advance the quality of life and those of future generations. The ESD sets out the criteria for the protection of the environment and biodiversity, the considerations of socio-economic impacts as well as whether the interest of the project outweighs environmental risk, harm or damage. REFERENCES Bates, G 2006, Environmental Law in Australia. 6nd ed, Lexis Nexis Butterworths, Chatswood McGrath, C 2001, An Introduction to the Environment Protection and Biodiversity Conservation Act 1999 (Cth), Community Biodiversity Network Nicolas, D.S 2002, Environmental Principles: From Political Slogans to Legal Rules. Oxford University Press, New York Ruddock, K 2007, The Bowen Basin Coal Mines Case: Climate Law in the Federal Court’. In Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia Sydney, The Federation Press Cases Australia Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493 Boyce v Paddington Borough Council [1903]1 Ch 109 Bowen Basin case (2006) 232 ALR 510 Levy v. Victoria (1997)189 CLR 579 Minister for the Environment and Heritage v Queensland Conservation Council Inc (2004) 134 LGERA 272 Perre v Apand Pty Ltd (1999) 198 CLR 180 Taralga Landscape Guardians Inc v Minister for Planning and Res Southern Cross Pty Ltd [2007] NSWLEC 59 Legislation Environment Protection and Biodiversity Conservation Act [EPBC] 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW) Read More