The following chapter of this thesis surveys and critiques the literature on environmental justice, discussing principles and a theory of environmental justice. It forms the basis for analysing Australia’s domestic legal system, particularly in the context of the dissertation’s three case studies, and for proposing a more principled, ethical and just approach to the experience of the law, the purpose of the law and the content of, and prioritisation within, the law. The thesis treats the concept of environmental justice as a very broad one, drawn from a plurality of ideas and scholarly and activist contributions, and seeks to advance an understanding of, and meaning for, environmental justice for law and for Australia. Hence, the literature reviewed and analysed covers many disciplines and perspectives about what environmental justice is, what it achieves, and who and what it benefits. The focus of chapter 2 is on the experience of environmental justice, how it has been defined and what the concept is composed of, rather than how the concept has been philosophised.
Chapter 2 also engages with, and provides insights into, contemporary debates about, whether and how, why and why not, the theory, principle and movement of environmental justice should evolve. To ground this discussion, the thesis adopts a common path by
explaining the rise of the environmental justice movement in the United States, the focus of that movement and the principles that the movement devised for itself and its compatriots. It picks up on the encouragement of Sze and London236 to consider who and what is being
brought into the movement as it continues to transcend its environmental racism roots, and as it becomes more global as the climate justice discourse takes hold.237
Chapter 2 shows that Australians have engaged in environmental justice struggles, though they were not labelled that way, and that the Australian experience has for a relatively longer period than in the United States been less structured and less confined by the movement’s origins. It was Australians Low and Gleeson238 in the early 1990s who argued
that ecological justice aligned with an environmental justice theory. That is, that environmental justice was not just about fairness for people but comprised a morality towards non-human parts of the ecosphere. This is a position that I pursue, arguing that environmental justice is multifaceted, not just a movement, but a theory based on environmental morality and ethics. Seen this way, environmental justice is not simply an argument, something around which opposition to harmful activities and development coalesces. It becomes meaningful and especially useful as a framework to critique environmental systems, including legal systems.
In building a framework I rely especially on the environmental justice scholarship by and responding to Schlosberg since the 2000s.239 With others,240 Schlosberg defines
environmental justice into themes, or what I have called aspects of environmental justice, that are familiar to a legal audience. They are distribution, participation, recognition and capacities. It is against these aspects of environmental justice that I subsequently analyse
236 Sze and London, above n 151.
237 Gordon Walker, ‘Globalizing environmental justice: The geography and politics of frame contextualization
and evolution’ (2009) 9 Global Social Policy 355.
238 Low and Gleeson, above n 116. 239 Schlosberg, above n 10.
240 Including Gary C Bryner, ‘Assessing claims of environmental justice: Conceptual frameworks’ in Kathryn M
Mutz, Gary C Bryner and Douglas S Kenney (eds), Justice and Natural Resources: Concepts, Strategies and Applications (Island Press, 2002) 31.
Australia’s environmental laws.
Method
Chapter 3 explains how the research questions and problems detailed in this first chapter will be answered, using the principles, theory and framework introduced and developed in chapter 2. Chapter 3 makes explicit a departure from conventional legal research and analysis. It presents a methodology that allows me to traverse disciplines: to bring law and social science perspectives into analysis using a theory developed from political and social inquiry. The analysis is qualitative rather than quantitative and depends on a case-study approach, and sources data from court documents, public inquiry submissions, historic archives and media. These sources are complemented by interviews with actors in each case study: the protagonists, the experts and government representatives. This material offers narratives about the fairness of the legal processes and outcomes of each case, about experiences and perspectives of the law and of power. It emphasises the value and
importance of place to those who were aggrieved by the projects explored as case studies as well as acknowledging that those within place know the law by virtue of their lived experiences with it.241 The chapter positions the dissertation within the broad research field
of law and society and presents the analysis as contributing to the still formative critical study of law and geography. It draws on the tradition of legal ethnography, particularly guided by the approach adopted by Merry in her renowned research in the 1980s into domestic law court disputes.242
The case studies were chosen for analysis in this thesis for a number of reasons. They comprise controversies at the local level (Orange Waste Project), the state level (Channel Deepening Project) and the national level (Wielangta Forest conflict). They therefore represent cases of having different profiles and interest to and by different Australian publics. They also offer jurisdictional coverage (Tasmania, Victoria, New South Wales and the Commonwealth), and an opportunity to explore laws that have different purposes
241 Robyn Bartel, ‘Place-thinking: The hidden geography of environmental law’ in Andreas Philippopoulos-
Mihalopoulos and Victoria Brooks (eds), Research Methods in Environmental Law (Edward Elgar, 2017) 159.
242 Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans
(planning laws, environmental assessment laws and forestry laws) while sharing common features, notably the goal of achieving ecologically sustainable development and the involvement of the community in decision-making. They each led to a community
encountering the law when the courts helped expand or clarify the meaning of ecologically sustainable development. The cases collectively touched on the holism of that principle (Channel Deepening Project), the notion of intergenerational equity (Orange Waste Project) and of ecosystem and species resilience, integrity and conservation (Wielangta Forest conflict).
The cases studies were paradigmatic243 in the sense that they are symbolic, celebrated and
drew in the communities of interest. At law, they stand for more than the outcome of the case. The three disputes are atypical of most environmental cases in a number of ways. The fact that the conflicts went to court, supported by lawyers acting at reduced fees, is the first unusual feature. Most environmental controversies and conflicts do not make it to court. The most unusual feature of each case study is there was a point where both the proponent and the opponents experienced success and failure. This was an important feature,
however, because it meant that the conflicts could illustrate the changeability in legal controversies and the influence of personality and politics on environmental governance. It also facilitated a contrast in outcomes. I was able to ask: was one outcome in each case study more or less just than the other?
Case studies
Chapters 4, 5 and 6 analyse the three case studies in south-eastern Australia (see Figure 1), to illustrate Australian environmental law in action. Each of these chapters records an environmental controversy, explains how it encountered the legal system and then critiques the legal system particularly from the viewpoint of the actors and stakeholders involved in the project that gave rise to the controversy.
Figure 1: Case study site locations – south-eastern Australia
Orange Waste Project
The case study explored in chapter 4, the Orange Waste Project, was originally conceived as a waste recovery facility and associated landfill to service the municipalities of Orange and Cabonne in rural New South Wales, and to be located in the small country town of Molong (see Figure 2). The ‘Existing Orange Tip’, which was assessed as nearing the end of its life, would close.244 This meant that the City of Orange would not have a waste facility within its
boundary. The project, which was subject to studies and conceptualisation from 2002 to 2010, required development assessment and approval under the Environmental Planning and Assessment Act 1979 (NSW). Originally, this assessment was made with the Local Environment Plan245 as the primary legal instrument for consideration. However, after the
project was rejected by the New South Wales Land and Environment Court in Hub Action Group v Minister for Planning,246 the project and its assessment changed shape.
244 NSW Department of Planning, Assessment Report: Proposed Landfill & Regional Resource Reprocessing
Facility, Molong (December 2006).
245Cabonne Local Environment Plan 1991. 246 (2008) 161 LGERA 136.
Figure 2: Orange Waste Project, New South Wales – location
After the Shire of Cabonne withdrew from a joint-venture agreement about the project with the City of Orange, the project was changed so that waste would be delivered, sorted, baled and wrapped at the Orange tip site before being buried at a reconfigured landfill in Molong – a landfill acclaimed as representing best environmental practice and reflecting a vision of sustainable development.247 The assessment of the project was also changed. The new
project was declared to be a project of state significance, so was assessed under so-called ‘fast-track’ planning and environmental assessment laws.248 These laws consolidated power
in the Minister for Planning and enabled local planning policies and laws to be disregarded. The project opposition was led by the community organisation the Hub Action Group, and the nature of the opposing arguments centred on concerns for the long-term agricultural use of the land, unfairness at Molong being the site for waste that its residents would not generate, and a denial of access to courts and influence because the project was assessed under laws the New South Wales community249 saw as unfair.
247 Interview with Jason Scarborough, New South Wales EPA, 11 August 2011; Total Environment Centre,
Cabonne Council Dumps on Orange (Media Release, 25 November 2009).
248Environmental Planning and Assessment Act 1979 (NSW), pt 3A (since repealed).
249 Kristian Ruming, ‘Cutting red tape or cutting local capacity? Responses by local government planners to
Port Phillip Channel Deepening Project
The case study explored in chapter 5, the Port Phillip Channel Deepening Project, involved the dredging of shipping channels in, and at the entrance to, Port Phillip leading to the Port of Melbourne (see Figure 3). The purpose of the project was to allow larger ships to access the busy container port through deeper channels. The project, which was assessed and performed from 1999 to 2008, was subject to environmental impacts assessments undertaken under state and federal laws.250
Figure 3: Port Phillip Channel Deepening Project – location
The project was advanced by the state statutory authority the Port of Melbourne
Corporation,251 and was subject to inquiry by Planning Panels Victoria, a discrete branch of
the Victorian Planning bureaucracy that reports to the Minister for Planning and was accredited as an inquiry agency for the purposes of the federal environmental law. The project was opposed by a wide cross section of the Victorian community, including conservation groups, concerned scientists, shipping personnel and groups, and recreationalists and tourism providers. The opposition, however, was led by the Blue
250Environment Effects Act 1978 (Vic); Environment Protection and Biodiversity Conservation Act 1999 (Cth). 251Port Services Act 1995 (Vic).
Wedges Coalition Inc. It participated in two environmental assessment processes252 and was
the applicant in three court cases – one in the Supreme Court of Victoria253 and two in the
Federal Court of Australia.254 These cases concerned the necessary procedures for
environmental assessment in Victoria, the function of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the meaning of ecologically sustainable development in that statute.
The project was opposed because of the concerns about the unknown impacts on a complex ecosystem and human and commercial uses of the bay, concerns about human impacts of disturbing contaminated sediments and because of the questionable need and economics that underpinned the project justification. Throughout the project design and assessment, there were claims of government interference in process, submissions being ignored, submitters being disrespected, and social and environmental impacts of concern being ignored.
Wielangta Forest conflict
The case study explored in chapter 6, the Wielangta forest conflict, concerned a decision of the Tasmanian forestry agency, Forestry Tasmania, to approve logging activities in
accordance with Tasmanian law255 in coupes of forest in the Wielangta area, north east of
Hobart in south-east Tasmania (see Figure 4). Before the initiation of the court case that was the trigger for the three-year conflict focused on the protection of species, the forest reserve that encompassed the historic former forestry town of Wielangta256 was not well
252 Rynd Smith et al, Report of the Advisory Panel into the Channel Deepening Project Environment Effects
Statement (11 February 2005); Allan Hawke, Kathryn Mitchell and Mike Lisle-Williams, Port Phillip Bay Channel Deepening Supplementary Environment Effects Statement Report of the Inquiry (1 October 2007).
253Blue Wedges Inc v Port of Melbourne Corporation [2005] VSC 305.
254Blue Wedges Inc v Minister for Environment Heritage and the Arts (2008) 165 FCR 211; Blue Wedges v Minister
for Environment Heritage and the Arts (No 2) (2008) 167 FCR 463.
255Forestry Act 1920 (Tas).
256 Astrid Ketelaar and Parry Kostoglou, A Short History of the Timber Industry in the Wielangta State Forest
known or instrumental in the decades-long battles of forests in Tasmania.257 The forest
reserve was subject to the Tasmanian Regional Forest Agreement,258 and was assumed by
governments to be exempt from the federal law designed to protect endangered species: the Environment Protection and Biodiversity Conservation Act 1999 (Cth).259
Figure 4: Wielangta Forest coupe logging project – location
The lead opponent of the proposed logging activities was Australian Greens Senator for Tasmania Dr Bob Brown. He sought to use the conflict to highlight the failures of the Regional Forest Agreements to protect endangered species.260 The conflict, the subject of
two cases and an application for leave to the High Court of Australia,261 focused on the
impacts of logging on three species protected at state and federal law: the Tasmanian wedge-tailed eagle, the swift parrot and an endemic and rare stag beetle that came to be
257 Anna Krien, Into the Woods: The Battle for Tasmania's Forests (Black Inc, 2010). 258 Made under the federal Regional Forest Agreements Act 2002 (Cth).
259Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 38 provides that the parts of the Act
that prohibit activities that are likely to have a significant impact on protected parts of the environment do not apply ‘to an RFA forestry operation that is undertaken in accordance with an RFA’.
260 Interview with Margaret Blakers, campaigner, 16 August 2011.
261Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1; Forestry Tasmania v Brown (2007) 167 FCR 34; Brown v
known as the Wielangta stag beetle. Each species was differently dependent on the forest ecosystem. Opponents argued that the species would be further threatened and
endangered by the logging, and that under law the species had to be protected. The arguments about the conflict also spilled over into debates about truth and integrity in science and policymaking and the appropriate level of influence of the forestry agency over the government directs and decisions. The court cases also brought into question costs barriers to public interest environmental litigation.262
262 Alexandra de Blas, ‘Can a parrot get justice under a Regional Forest Agreement?’ (2009) 150 ECOS