Friday 23/11/12 Bruce Lindsay, New Matilda
Ted Baillieu wants to partner up with community groups to help protect the environment. But his government continues to take power out of the hands of Victorians to fight environmental destruction, writes Bruce Lindsay
Earlier this month the Victorian Government announced to media silence what appears to be its de facto environment policy: Environmental Partnerships. The policy encourages Victorians to get more involved in helping protect and enhance the environment and claims to lay the foundation for government, business, industry, community groups and individuals to work together.
It focuses on a range of priorities, including biodiversity, public lands, environmental regulation, pollution and waste, energy and water, and governance.
Sadly, the program will do very little to improve environmental outcomes in relation to any of these priorities.
The Environment Defenders Office (EDO), where I work, has been fighting for 20 years to improve environmental laws. Litigation and efforts to change the law have both been part of this exercise. It is a peculiar type of community legal centre, in that it pursues mostly public interest work; that is, legal work on behalf of the community generally. Over the years, it has played a major role in bringing the law, its institutions and community groups closer together. The law may be a blunt and difficult instrument sometimes but this has been a fruitful partnership. It has brought law within the scope of ordinary people.
This kind of joint venture, which gives the community access to good environmental law, is not necessarily what the Baillieu Government envisages in its partnerships.
What is striking about the accumulated effect of the new package is there is virtually nothing in it that would strengthen environment protection laws and regulation. The approach contains neither a vision nor a framework for meaningful, permanent measures for environmental improvement.
The manifold pressures on the environment that led to the enactment of planning laws and pollution control laws, protections on waterways, catchments, native vegetation, rivers and coasts, and measures on climate change have not abated. Pressures have intensified over the past several decades. These laws exist for good reason: where they work, they contribute significantly to environmental protection and, by extension, to our individual and collective well-being.
From a legal perspective, at least three problems arise with the new policy.
First, relying on communities to provide free labour and undertake environment protection and improvement works does not equate to a comprehensive partnership. Funding for community environmental groups is important but genuine partnerships involve citizens and communities possessing enforceable rights to participate in the decisions affecting their environment.
For example, the absence of the rights of individuals to challenge approvals to build mines in their district or the incapacity of individuals to refer damaging development proposals for scrutiny are indicative of a lack of genuine partnership.
If approval is given to log forests in which legally protected species are known to exist, or if a logging company looks like it is going to destroy habitat by logging illegally, it is for all practical purposes impossible for Mr or Ms Concerned Citizen to halt this activity. It might be done in exceptional cases, subject to risks of costs order being made against you, and where you have a very strong connection to those places or issues. But these are generally insurmountable obstacles, especially for community groups.
So-called third-party rights and open standing to enforce environmental laws would be a profoundly useful type of partnership. No sign of it in this document though.
Secondly, nothing in the partnerships appears to involve reforming important environmental legislation that does not work at the moment. A classic example is Victorian law protecting threatened species, the Flora and Fauna Guarantee Act. It looks great on paper but the Act is very poorly implemented and many of the legal instruments in it are never used. Little is protected by it.
We could also put into the does not work basket those laws allowing governments to intervene whimsically in environmental decision-making. Planning laws are a good example. For several years, a small community group has opposed an inappropriate coastal development near Portland in southwest Victoria. The local shire had evidence the whole development would collapse into the sea in a few decades. After several years of planning applications and approvals at local government level and another six months building up to Victorian Civil and Administrative Tribunal proceedings, the Planning Minister stepped in and changed the planning scheme (effectively changed the law) to allow the project to occur.
The capacity for this sort of over-the-top intervention, regardless of good environmental decision-making, is certainly not dealt with in the government’s purported environmental policy.
The public service could be required and resourced to do its bit in this partnerships business too. Only weeks ago the Victorian Auditor-General found that its main environmental departments, the Department of Sustainability and Environment and the Department of Primary Industries, have few if any systems in place to enforce, monitor or ensure compliance with existing environmental laws. There is nothing in the Government’s plan to address this situation.
Finally, a key thread of the partnerships model is aimed squarely at shoe-horning a range of environmental measures into economic policy, regardless of environmental protection outcomes and typically to their detriment. For example, the proposed reforms are more preoccupied with creating markets to clear vegetation than improving the existing native vegetation protections. Turning over the responsibility for environmental protection to the market will result in environmental laws being watered down under the guise of reducing the administrative burden.
Nothing in the Environmental Partnerships document appears to involve any real policy response that might result in improved environmental regulation and outcomes. The best interpretation of the Baillieu Government’s environmental policy approach would seem to be: doing nothing faster and better.