NELA (WA) Annual Conference 2017

Transcription

1 NELA (WA) Annual Conference 2017 Access to Justice for ESD in Western Australia: Whether tis nobler to establish an Environment Court Notes of presentation by Hon Professor Christine Trenorden UCL Australia 1. Introduction: What are you thinking of doing? In January prior to the state elections, the then Shadow Environment Minister agreed to look into having the State Administrative Tribunal address environmental matters after a call for a specialist environment court in WA. The responses from industry and the then government were typically opposed, defensive of the status quo and conveyed a negative view of the legal profession and court process. They included fairly typical reactions from industry and business including the use of phrases such as: it would blow out project approval times and be a lawyers picnic. it would be unfortunate to see the system become tied up in legalities resist moves to include big projects. And then Environment Minister Albert Jacob said the Liberals would not commit to an environment court because it would add an unnecessary layer of bureaucracy and cost to taxpayers. 1 A state environmental court has been called for from time to time including earlier this year by a group of eminent scientists. 2 The question is as to what is desired in an environmental court if the State is to establish one. Should the specialist court have jurisdiction to hear appeals against licence conditions, orders, etc? Should it have jurisdiction to hear applications for injunctions and civil enforcement? Should it have the powers of judicial review in relation to matters that affect or are likely to affect the environment? Should it have jurisdiction to hear and determine charges of offences under environmental and natural resources legislation? On the other hand, the then shadow minister proposed giving an environmental jurisdiction to the State Administrative Tribunal. What would that mean? This was not the first time it had been suggested that the SAT be given jurisdiction over environmental matters. Indeed the Standing Committee on Legislation in 2009 had recommended that the Environmental Protection Act 1986 (WA) be amended to confer jurisdiction on the Tribunal in relation to pollution control matters. 3 1 Labor takes a green risk, 20 January 2017, The West Australian 2 Ibid, 3 Report 14 Standing Committee on Legislation: Inquiry into the jurisdiction and operation of the State Administrative Tribunal, May 2009; accessed at: 1

2 In 2010 the first President of the SAT, the Hon Justice Michael Barker recalled this recommendation when he said: I also consider that, in time, the SAT should have conferred upon it a greater range of environmental and pollution control functions so that, to the largest extent possible, planning and environmental decision-making becomes an integrated decision-making process in the Tribunal The Justification for a specialist environment court: the International background The Rio Declaration 5 urged sustainable development as the way of the future a way to balance the desire to protect our fragile environment with the need for economic growth through development. Principle 10 of the non-binding Declaration sought to ensure that every person has access to information, can participate in the decision-making process and has access to justice in environmental matters with the aim of safeguarding the right to a healthy and sustainable environment for present and future generations. Just to remind ourselves what was agreed: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. The Rio Principle 10 is reflected in the Aarhus Convention 6 which entered into force in 2001, which began life as a European regional agreement that established the rights of citizens and their associations with regard to the environment The three pillars of the Convention are: a right of access to environmental information held by public authorities a right of public participation in environmental decision-making a right of access to justice. Article 9 requires a party to ensure that members of the public have access to: a review procedure in a court of law or other independent and impartial body to challenge the substantive and procedural legality of any decision, act or omission, 4 Justice Michael Barker Background to the establishment of the State Administrative Tribunal of Western Australia, State Administrative Tribunal Conference to mark 80 years of town planning law in Western Australia, 2010; accessed at: 5 UNCED 1992, 6 The UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted 25 June 1998 in Aarhus, Denmark. 2

3 where they have either a sufficient interest or an impairment of a right under the law; 7 and administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which challenge the state s environmental laws. 8 It has been suggested that the 3 rd pillar gives rise to a need for a specialist environment court to enable citizens to have prompt and effective access to justice in environmental matters. It is accepted as the global standard through the 2010 Bali Guidelines, adopted by the Governing Council of UNEP in Bali in Specialist Environment Courts and Tribunals In Australia there are 3 specialist courts that have jurisdiction in relation to both planning and environmental matters. They operate in New South Wales, South Australia and Queensland. There is also a Land Court in Queensland which has a limited jurisdiction in relation to environmental matters. I will refer to these in more detail in due course. a. Planning and Environment Tribunals in Australia In two States there are tribunals which have jurisdiction over both kinds of matters. The Victorian Civil and Administrative Tribunal has a Planning and Environment List that in the year saw 2695 applications, of which just 14 matters were lodged under a provision of the Environment Protection Act. The List s jurisdiction under that Act includes hearing an application under s 114 of the Act: A responsible authority or any person may apply to the Tribunal for an enforcement order if a use or development of land contravenes or will contravene a Planning Scheme or a condition of a permit. In Tasmania, the Resource Management and Planning Appeals Tribunal has operated since Its jurisdiction includes the hearing of matters under the Environmental Management and Pollution Control Act Civil enforcement applications may be lodged under s 48 of that Act: The Director, a council or person who in the opinion of the Tribunal has a proper interest in the subject matter may apply for an order. contravention of the Act or caused environmental harm. In the last year for which I could find figures , there were a total of 122 lodgements in the RMPAT, of which only one was a civil enforcement application under section 48. A total of 101 matters were planning appeals. 7 Article 9 para 2 8 Article 9 para 3 9 UNEP, Guidelines for the Development of National Legislation on the Access to Information, Public Participation and Access to Justice in Environmental Matters, adopted by the Governing Council of the united Nations Environment Programme in decision SS.XI/5, part A of 26 February The Bali Guidelines 3

4 Tribunals do not have a criminal jurisdiction, nor can judicial review matters be heard by them. They are creatures of statute and are limited to the jurisdiction granted by Parliament. b. New Zealand: Environment Court A monumental change occurred in New Zealand in 1991 with the passage of the Resource Management Act. This Act established the Environment Court (as the successor to the Planning Tribunal) which commenced operation in It has jurisdiction to hear appeals against decisions on applications and notices issued by an authority, appeals against plan reviews and policy statements, as well as civil enforcement applications. The judges of the Court are District Court judges. A judge will sit to hear and determine a matter with a commissioner, and commissioners may sit alone to hear and determine matters. Civil enforcement matters generally number around 40 per year but in 2016 the total number lodged was only 26 matters, with as is usual, approximately two thirds brought by councils and one third by individuals. 10 Regarding criminal matters, these can only be heard in the District Court and in practice are heard by judges who hold Environment Court warrants. In accordance with Protocol between the Heads of the Environment and District Courts, all cases are heard by a fully warranted EC judge except in cases of urgency where Alternate Environment Judges may sit. 11 c. New South Wales: Land and Environment Court The Land and Environment Court was established in 1980 as a superior court of record, the first specialist environment and planning court in Australia. It is both a general court at Supreme Court level having the powers of the Supreme Court with respect to judicial review and the enforcement of environmental laws, as well as statutory civil enforcement powers, and an administrative appeals tribunal with jurisdiction under various statutes, rolled into one independent superior court. The members of the Court include judges and commissioners with expertise in one or more of the fields specified in the legislation. Matters may be heard by a judge alone, a judge with a commissioner assisting, or a commissioner alone. There is a right of appeal from a commissioner s decision to a judge of the court. It has limited jurisdiction in relation to criminal matters, and shares a summary jurisdiction with the lower, local court in relation to charges of offences under the various environment, planning and natural resource Acts. 10 Environment Court of New Zealand Annual Review Calendar Year 2016, accessed at pdf 11 Ibid. 4

5 In the year Class 4 matters (civil enforcement and judicial review) numbered 124 registrations out of total registrations in the court for the year of 1237 (10%). Class 5 (prosecutions) numbered 47 which equals 4% of the total registrations. d. South Australia: Environment Resources and Development Court The Environment, Resources and Development Court first sat in It was established as a court of record, with its judicial members being judges of the District Court who had been appointed (in the case of the Senior Judge) or designated as judges of the ERD Court. The members of the court also include commissioners appointed for their expertise, 12 either as full time permanent commissioners, or as sessional Commissioners appointed for a fixed term. Commissioners may sit alone to hear matters, or with a judge as part of a full bench. The commissioners and judges have equal decision-making authority with the exception that on matters of law, the judge s decision prevails. The judges may and do, sit in other jurisdictions. The ERD Court has the jurisdiction conferred by various statutes, which includes the hearing of merits appeals (administrative appeals; hearings de novo); civil enforcement applications for orders to remedy or restrain breaches or impending breaches of legislation and for orders for remediation, damages, exemplary damages, etc; and criminal matters but not major indictable offences. This jurisdiction is conferred by legislation directed to environment protection, native vegetation conservation, natural resources management, heritage places, marine parks, and planning and infrastructure development. The criminal jurisdiction of the Court is shared with the Magistrates Court and is a summary jurisdiction. However, judges of the ERD Court do also sit in the District Court, where they may hear and determine major indictable offences under environmental and natural resources legislation, not within their power to hear and determine as ERD Court judges. An appeal lies from the judgment of a single commissioner to a single judge of the Supreme Court, and from the judgment of a full bench or single judge (except on an interlocutory issue), 12 Environment, Resources and Development Court Act 1993 s 10: (2) A commissioner (other than a native title commissioner) must be a person with practical knowledge of, and experience in (a) local government; or (b) urban or regional planning; or (c) architecture, civil engineering, building, building safety or building regulation; or d) administration, commerce or industry; or (e) environmental protection or conservation; or (f) agricultural development; or (g) land care or management, housing or welfare services; or (h) heritage; or (i) resource exploration, recovery or production; or (j) any other field which is relevant to a jurisdiction conferred on the Court by a relevant Act. (2a) A commissioner appointed as a native title commissioner must be a person with expertise in Aboriginal law, traditions and customs. 5

6 to the Full Court of the Supreme Court as of right on a question of law, and with leave otherwise. In the year , there were 274 lodgements, of which 13 were civil enforcement applications (5%). Criminal matters lodged numbered 24 only (8.75% of matters). e. Queensland Planning and Environment Court The P & E Court is established as a division of the District Court. It does not include non-legal members. As with all other courts, it may appoint one or more assessors with particular expertise to assist in a matter, but the decision is that of the judge alone. Like other courts, it does focus on the resolution of issues without going to hearing, through and ADR registrar, which is unique among the specialist courts. In , 95% cases were finalised without going to hearing. The court does not have a criminal jurisdiction, nor is it able to hear applications for judicial review. As with other courts, most of its work is in relation to planning appeals, although it has jurisdiction under the Environmental Protection Act 1994, in relation to appeals and civil enforcement. f. Queensland: Land Court This Court was established 17 years ago, as the successor to an earlier body. It has a particular jurisdiction under the Environmental Protection Act. It comprises legal members only for the jurisdiction with which we are here concerned. They are appointed for a limited term of 15 years. It may hear objections to the grant of an environmental authority for a mining, petroleum and gas lease and certain appeals in relation to environmental issues associated with mining activities. The Court s decision on the referral of an objection may only be a recommendation to the administering authority in relation to the draft environmental authority (approval, revised conditions, or refusal) unless the Coordinator General has carriage of the project in which case the Court s recommendations as to conditions cannot be inconsistent with the Coordinator Generals Conditions. 13 For the year , only 21 referrals and review applications under the Environmental Protection Act were filed. 4. General Characteristics of the specialist environment courts We can now summarise the general characteristics of specialist environment courts. They have the following characteristics: Established by their own Act of Parliament but their jurisdiction is given by other legislation 13 S 190 Environmental Protection Act

7 Generally have jurisdiction under both planning/development Acts as well as under legislation the objective of which is protection or management of the environment and natural resources. Courts of record Generally comprise specialist judges and most are multidisciplinary in their membership Generally have jurisdiction to hear appeals (merits hearing de novo) and civil enforcement applications stream cases and have docket systems encourage ADR/ forms of resolution without going to a hearing may appoint assessors or call for expert reports not bound by the rules of evidence but receive evidence on a fairness basis business conducted with a minimum of formality and technicality practice an integrated approach aim to be efficient in the disposal of cases while maintaining fairness aim for consistency in decision making aim to minimise the costs for parties are generally innovative in the interests of improving practices and procedures generally appeals are on available on a question of law alone Some courts also have a limited criminal jurisdiction. To have the supervisory jurisdiction of the Supreme Court (judicial review) the Court needs to be established at superior court level (and the jurisdiction specifically and exclusively granted by the Parliament. It should be noted that even if a specialist environment court possessed the judicial review jurisdiction, it is likely that an appeal would lie from its judgments to the Court of Appeal, as is the case in New South Wales. It is important the judges or legal members of these courts either have some expertise in environmental law at both state, national and international level, or are prepared to embark on a fast learning exercise. 5. The advantages and disadvantages a. Advantages The arguments for a specialist environment court are addressed under a number of headings. George Pring and Catherine Pring summarise the arguments in favour, under 18 headings. 14 Some of these overlap; my list is smaller. Expertise: Judges with specialist knowledge in environmental law and international developments make the better decision makers than generalist judges, in an area 14 George Pring and Catherine Pring, Environmental Courts and Tribunals: A Guide for Policy Makers (UN Environment Programme 2016); also Greening Justice: Creating and Improving Environmental Courts and Tribunals (The Access Initiative 2009) 7

8 where the law is increasingly complex and informed by developments in our knowledge of many matters. An environmental court might also include expert nonlegal members which would enable multi-disciplinary decision-making. Efficiency: The general courts often suffer from backlogs, resulting in time delays for a matter to be heard and finalised. Indeed, commercial divisions have been established in some jurisdictions to fast-track commercial matters requiring a speedy hearing and determination. Matters falling within an environmental jurisdiction generally require speedy resolution, whether to address an issue of damage and remediation and thus minimise the loss of vegetation, species, etc, or to determine a matter relevant to a required environmental authorization. Visibility: A specialist environmental court indicates that environmental protection and access to environmental justice is a high priority for the communities served and the government that established it. o Indicates Commitment by Govt: The existence of a specialist environment court indicates the relevant government s commitment to ecologically sustainable development, the environment and environmental justice. o Public Confidence: The mere fact of a specialist environment court with specialist members increases the public perception of its expertise and correspondingly its confidence in the court to deliver justice in environmental matters. Cost of access cheaper: The cost of litigation can be a significant barrier to justice. Specialist environment courts can develop their own rules of procedure and practices to minimise the cost of litigation. Uniformity in approach: Consistency in judgments is important for the rule of law. A consistent approach to determining cases is more likely in a specialist environment court than if the case were to be determined by a judge in a generalist jurisdiction, unfamiliar with the relevant law. Standing: In recognition of the particular nature of environmental cases, the Parliament may see fit to expand standing to bring proceedings in a specialist environment court, while not disturbing the standing rules for the generalist courts. There is no evidence that the expansion of standing has opened the flood gates in specialist environmental courts a fear that was expressed at the time of the establishment of the Land and Environment Court in Prioritization: a specialist court or division enables urgent cases to be fast-tracked, as discussed above. Flexibility and Creativity: Specialist courts have generally adopted flexible and creative procedures and practices, sometimes for the initiation of proceedings, and innovative and practical approaches to the presentation of evidence, in the interests of removing barriers to access to justice and providing for the efficient and cost-effective determination of proceedings while continuing to facilitate a fair hearing. Remedy Integration: Provided they have administrative, civil and criminal jurisdiction, specialist environment courts can deal with various matters involving the same defendant and the same acts or activities in an integrated fashion. 8

9 Alternative Dispute Resolution: Although ADR is now integrated into many of the generalist courts, it has become a feature of specialist environment courts, through the adoption of conciliation, mediation, early neutral evaluation, arbitration and also restorative justice. The flexible approach of specialist court together with ADR allows for innovative solutions and better outcomes in a shorter time than going to hearing and determination. Public Participation: With a flexible approach to practice and procedure, compared with generalist courts, the public can have greater access to justice, but this does depend on the statutory rights of third parties. b. Disadvantages of specialist courts generally Marginalization: A specialist court takes environmental cases out of the mainstream and marginalises the judges. But there are ways to overcome this. Co-location of the specialist court with a generalist court; facilitating judges sitting in a generalist court for a period each year, are some solutions. Judicial bias and activism: specialist judges may be advocates for environmental protection and not balanced in their approach. This is unlikely as judges are mindful of their oaths of office and their training, but there is always the appellate court. Fragmentation: A specialist environment court would fragment the legal system and isolate important environmental issues. But this argument could be applied to every other area of specialisation commercial courts/divisions, family courts, etc. But there is a point the environment impacts on almost every area of law. Insufficient caseload: this is a real consideration and why I would never recommend a specialist court that did not address both planning/development, natural resources and environmental matters. The costs of creating a new institution: It is said that the costs aren t worth it. But we spend money to uphold our values. The question is the significance to our future of ecologically sustainable development. Otherwise, look at ways of minimising establishment costs; eg, co-location; a specialist division of a generalist court; a panel of specialist judges appointed to hear certain matters, etc. Terminology confusion/demarcation: this point suggests that there might be arguments over what constitutes an environmental case but this is a matter for Parliament to clarify through the legislation. Creates inferior court/lower status of specialist judges: There is a point, as the specialist courts in Australia were referred to initially as the parks and gardens courts, and there was a certain snobbery about the status of the judges but those days are long gone in Australia. We have shown them by the quality of our judgments and our innovative and flexible procedures! Another approach to meet this argument is to add up the value of the matters dealt with by a specialist court as does VCAT in regard to the P&E List, in its Annual Report. Insufficient pool of potential judges: I doubt this is a problem in Australia, but it can be addressed through judicial education and the sharing of experiences through the biennial meetings of ACPECT. 9

10 Generalist judges are the better decision makers: Some do argue that generalist judges, with a broad perspective and experience will focus on the forest and not the individual trees, and decide cases better than the specialists. 6. Context matters a. The Western Australian context The institutions for dispute resolution in a jurisdiction are often the product of the existing culture. Change generally occurs as a result of pressure often after a disaster or a decision that strong voices have condemned as being not in keeping with the community expectations. In WA it is not surprising that appeals under the Environment Protection Act are to the Minister rather than to a Tribunal or Court - unsurprising because of the earlier culture in WA whereby ministerial authority was perceived as more appropriate than a court or tribunal. Change may be difficult in this context, but not impossible. Consider the options, having regard to the likely realities. By way of example, is it likely that a specialist environment court would be worth the expense having regard to the likely number of matters? No? Then look at the alternatives: A specialist court with jurisdiction to hear both planning and environmental matters A specialist division of a generalist court which court would depend on whether you want the Court to have judicial review powers, and whether the CJ would agree. Specialist judges appointed/given a warrant to hear a particular class of matters (environmental) The State Administrative Tribunal, with planning matters. Consider the position of members of the court/tribunal: For an independent body, members should be permanent Address the potential isolation of judges of a specialist court at the outset by considering: o Co-location with a generalist court o Enabling the judges to sit in a generalist court from time to time Consider the role and jurisdiction: The Court/ Tribunal s role can only be as Parliament decides What do you want the jurisdiction to include? How to make the case? o Gauge the attitude of the CJ o Talk to former Presidents of the SAT o Consider the path by which planning appeals eventually went from being 90% decided by the Minister to the SAT and learn from it. o And be mindful that it might be difficult to take the planning jurisdiction out of the SAT, after only 12 years. 10

11 7. Conclusion It is 25 years since the Rio Declaration and we are still debating in Australia the grant of effective access to a specialist court or other independent and impartial body for remedies in regards to the environment that are adequate and effective, fair, equitable and timely, and not prohibitively expensive (to use the words of Article 9 of the Aarhus Convention), in the interests of ecologically sustainable development. I not in passing that the Australian public was arguing with the federal government 2 years ago about the proposed amendment of the EPBC Act to limit standing to environmental NGOs. But, I acknowledge that cultural change is difficult, as it is difficult for the Executive to relinquish power. That is why I urge you to look at your context here in WA in light of the likely realities and talk to others with experience, before committing to a particular path if you are interested in considering a specialist environment court. Business and industry will never willingly endorse the changes because they always see that it will cost them more, but they will accept them once the decision is made, once leadership is shown by the government and the result might actually be better applications and better compliance. Public confidence in the quality of any Court or other body s decisions and its procedure, is critical. A specialist independent and impartial review body whatever form it takes - should provide that confidence for sustainable development for WA s future. Finally, is it nobler to establish an environment court? Well, in my view, yes, but with the qualification that there is no point in reaching for the gold standard when other solutions may be more appropriate in the context of WA to meet the need for the independent and impartial hearing and determination of environmental matters. Postscript: The British people are in the throes of understanding what Brexit will mean. The House of Lords conducted an enquiry into what it would mean in the area of climate change and the environment. As a member of the EU, the United Kingdom was subject to the Directives of the European Commission for national legislation and the judicial oversight of the Court of Justice of the European Union in these and other areas. The House of Lords report is rather damning about the complacency, not to mention Government ministers confusion between political accountability and judicial oversight, which points to the need for effective and accessible judicial oversight in the area of the environment and climate change. With the greatest respect, I am hoping that Govt Ministers here are better informed and less confused than their British counterparts, despite the former Environment Minister speaking of an environment court as a layer of bureaucracy! 11