Sustainability: Obstacle or opportunity?
Brendan Bateman and Nick Thomas, Partners, Environment and Planning
Brendan Bateman
Sustainability really has to be understood in the context in which it's being used. We have economic sustainability, we have business sustainability but for us the important thing is ecological sustainability. Nick, would you agree?
Nick Thomas
Yes absolutely. Our background is essentially environmental law but we practise in a whole range of areas allied with that and so in our work we focus really on ecological sustainability and how it impacts on our clients and what opportunities that presents for our clients.
Brendan Bateman
One of the things that I've certainly been noticing over the last two years is how issues associated with ecological sustainability have really almost developed a hard edge to it now. It's really come into focus in terms of looking at things like project approvals and licensing and the debate that we're having now about climate change and water sustainability are really hitting home for businesses.
Nick Thomas
The courts are picking it up and running with it and it's affecting people's ability to get their project approvals. It's affecting the enforcement of environmental law. It's really structuring whole new environmental law regimes. We're seeing entire regimes with specific requirements being built on this platform of sustainability.
Brendan Bateman
That's actually a very good point you make. I recently received a query from a university student asking if there is a need for more legislative development in the area and quite honestly I said no there isn't because the law is already there. It just needs to be built on in terms of judicial consideration and it need to be applied on a practical level. So if anything we need more training and understanding about what the principles are and how they are to be applied.
And certainly like I said some of the recent decisions have clarified the role that principles of ecological sustainability are intended to have and in their application to particular project approvals and assessments.
Nick Thomas
I'd probably look at things like the precautionary principle, the principle of intergenerational equity and the idea of internalising environmental costs. Effectively Australia seems to take the view that sustainability is about integrating environmental and economic decisions and the important thing is getting the balance right. You can actually have these two ideas work in harmony.
Brendan Bateman
It's not an either/or proposition.
Nick Thomas
That's right. So it's a matter of getting the balance right. Perhaps if we talk a little but about the precautionary principle because that's one of the areas which gets a lot of press these days. Precautionary principle effectively says if there are threats of serious or irreversible environmental harm in a particular scenario, then lack of full scientific certainty about that harm and how to deal with it shouldn't necessarily prevent you from applying protective measures.
Now effectively that's a long-winded way of saying that the onus of proof or the responsibility for making the case shifts back to the proponent rather than the regulator or the environmental groups to establish the environmental credibility of the project.
Brendan Bateman
But that's only if there's evidence that there is a risk.
Nick Thomas
That's right.
Brendan Bateman
If there's no evidence that there's a risk, the precautionary principle doesn't come into play at all. It's not a case of if we don't know, don't do it. It's a case of saying if we don't know then let' s look into it and actually work out a proportionate response to addressing the risk.
Nick Thomas
Exactly right, yeah. It really picks up on this idea of the present generations not compromising the opportunities for future generations, and that can operate as a check or a balance on present proposals which may have long-term effects. But it can also bring to the fore opportunities for current proposals which are seen as potentially benefiting future generations.
That has a number of harder aspects to it I suppose, the best known one being that the polluter pays. So you see in our contaminated land laws the idea that if somebody contaminates land, even after they leave the site, they should continue to have a responsibility to clean up. We also need to think more about lifecycle assessments and project assessments, what people might call cradle-to-grave assessments. A simple example which is often used these days is the disposal of computer hardware once it's past its use-by date.
Brendan Bateman
I suppose the clearest example of that was the Telstra case, where consideration was given to the precautionary principle and applied in terms of whether or not in this particular case the erection of the mobile phone receivers at the Beecroft social club facility would have or create a risk to those people who lived in that neighbourhood.
Clearly when applying the precautionary principle in that case, absent any evidence of adverse impacts at a scientific level, there was no need for that to apply and so clearly the court there had regard to those principles but found they had no application and therefore the project could be approved.
I suppose one of the interesting things that I've observed is how the issue of sustainability, particularly ecological sustainability, is really becoming a boardroom issue now and in some respects that's because the way in which business is being operated at the moment is now having to address that specific issue, for example financial institutions and insurers which are now requiring their customers and clients to have environmental and ecological sustainability practices as businesses.
Nick Thomas
I mean you see throughout our chat now, we've really looked at the integration of economic and environmental considerations and I guess the important thing to take out of this is really two points.
The first is that the law is playing a significant role in implementing sustainability now. It's moved from this sort of broad aspiration to something with hard edges which the law actually applies and enforces.
The second is that it's important to focus not only on the constraints or to see sustainability as a handbrake on development, but to look at the opportunities which it presents and you know whether that be for renewable energy or for long-term management processes. There are lots of opportunities which sustainability raises and I think as various industries and the economy comes to grips with that, we'll see that action gap closed.
