The Wandoan coal case (Xstrata v Friends of the Earth
[2012] QLC 013) handed down last week shows how far our property law and
environmental and resource management systems need to evolve to deal
effectively with contemporary and future environmental issues.
It is acknowledged that climate change is a global problem (and indeed the parties in the Wandoan coal case did not dispute the science of climate change).
It is not the first global environmental issue – acid rain and the
pollution of the world’s great rivers are examples of other, earlier inter-jurisdictional
environmental issues. Unfortunately, the
evolution of environmental law in Australia, as elsewhere, exists still in a
political era of sovereignty and control over a nation’s own territory or in
the Australian context, that of a State. The territory does not represent anything
outside the context of law. This
construction of ‘the environment’ limits the law’s ability to deal with
incremental and cumulative impacts of activity within a territory, on an
otherwise interconnected world.
This territorial approach to the environment is compounded
by the compartmentalisation of land into differential resources each with their
own regulatory regime – for example, minerals, water and vegetation. (I have written on this before.)
This further reduces the way we think about environmental impact of
human activity into a variety of policy approaches, regulatory and licensing
frameworks and ultimately different procedural jurisdictions. Therefore while the environmental impact of one
project may have various effects on the environment, the law may treat each
aspect of the activity under a different regime. This is an unrealistic way to understand and
deal with the environment.
The law’s construction of ‘the environment’ in terms of a
series of independent resources within a boundary determined by law is
illustrated by the decision in the Wandoan coal case.
