DEA and a new generation of national environmental laws: time to make history in law reform

APEEL Meeting March 27 Canberra.

A delegation of DEA doctors (Ben Ewald, Arnagretta Hunter, Selina Lo) attended the "Better Laws for a Better Planet Symposium" hosted by the Australian Panel of Experts on Environmental Law (APEEL), IUCN Australia Committee, National Environmental Law Association, and Places You Love Alliance, on March 27, in Canberra at University House Hotel.

The report, Blueprint for the Next Generation of Australian Environmental Law, is a culmination of two years work by 14 experts in environmental law, including academics, lawyers, and a former Federal Court judge. The APEEL process was initiated by the Places You Love (PYL) alliance comprising leading environmental NGOs.

The APEEL papers (8 technical and a blueprint overview) are worthy and inspirational reading. Taken at full scope this is a historical and ambitious positive law reform proposal for Australia on environment and health issues. Within APEEL’s remit of ideas (which are worth reading in full to have your own interpretation and engagement) are the following highlights:

  • The Commonwealth should initiate wide ranging consultation for a societal goal for Australia that would replace or enhance the current National Strategy for Ecological Sustainable Development – for adoption within the next generation of laws.
  • Design principles for environmental law include the use of regulatory tools such as an impact assessment covering health, environmental, and social issues; and adherence to the principle of ‘non regression’ – that is to say no reduction in the level of environmental protection already provided by the law.
  • New directing principles included a principle of applying best available techniques.
  • Legal norms in form of rights and duties to be imposed on all legal persons to both take care to minimise harm and repair environmental harm.
  • Procedural rights including the right to access environmental justice.
  • The proposal of a Commonwealth Environmental (Sustainability) Commission and a Commonwealth Environmental Protection Authority.
  • Law reform regarding the private sector which would include the establishment of corporate hybrid enterprises that blend profit and community benefit goals.
  • There would be nationally coordinated data collections.

The symposium brought together APEEL lawyers, NGOs, academics and policy makers to discuss and debate the papers, solutions and ideas for future laws. The day mostly focused on “green” issues of biodiversity, management of bio-regions, the extent of land and marine nature reserves, and whether natural features can have legal rights. Several countries have given legal standing to a river, so the river can sue or be sued like a “natural person” or a corporation.

Highlights from the APEEL meeting were:

Kate Auty, the ACT Commissioner for Sustainability and the Environment gave an uncensored keynote address detailing her experiences of leading previous commissions. Ben Ewald gave a background on air pollution using visual and narrative anecdotes, and encouraged the use of economic instruments to drive exposure reductions even below the standards. His presentation was very well received. Nicola Rivers of Environmental Justice Australia made the case for enforceable national standards with regular review.

The discussion on the principles which would guide the law reform was very interesting; the principle of non regression is crucial from a global legal perspective. In other words, you can change the law but the environment must not be in a worse state than it was before. Further, there was a view that property rights should play an ecological function in addition to a social function and that these laws and rights could be informing the Global Institute of Prosecutions of the Environment. In summary the principle of ‘vote in favour of nature when in doubt’ was strongly supported.

On “brown” issues there was a session on regulatory approaches, risks and benefits of flexibility, and the use of National Pollutant Inventories that are thought to have been effective in other countries by giving environment groups the information to embarrass polluting corporations.

Places You Love Meeting March 28 Canberra 

“The doctors are here” was one of the positive comments regarding DEA’s presence at the “Places You Love” meeting in Canberra on the second day. This was a meeting that brought together a number of NGOs including the Wilderness Society, WWF, ACF, National Parks Association, Birdlife Australia and Environmental Justice Australia to talk about the "Places You Love” campaign. DEA is one of 43 organisations who have committed to this campaign and more are joining. It is the largest alliance of environmental groups in Australia, ever! The campaign centres on creating new environmental laws to protect Australia’s environment and consequently all our health. The plan is to have a Federal Environment Protection Authority and an Independent National Sustainability Commission to make objective decisions about developments, biodiversity, sustainable agriculture etc. The plan also incorporates a mechanism for the community to have more of a say in decision making.

The alliance was very pleased to have the doctors as part of this process. Selina Lo, Arnagretta Hunter and John Van Der Kallen represented DEA and they outlined how our health is inextricably linked to the environment. It is clear that the laws to protect the environment need to be stronger and DEA is committed to help the process. Strategies will include visits to members of parliament, media communication and liaising with the membership. The plan is for the group to drive the agenda rather than be reactive to government indecision. 

The fact that we were there on both days (technical and strategic) gave the process extra momentum which is a lesson for all of us at DEA. Don’t underestimate the influence that we have as doctors!

The background to the meeting is detailed in two articles in The Conversation by Peter Doherty and by David Shearman.

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