A New Justice for Australian Environmental Law

Abstract

Environmental justice is about fairness, equality and equity in decisions concerning the environment. It is about who benefits or is disadvantaged by environmental conditions - both good and bad. It is about vulnerable communities being recognised, protected and having influence over their localised livelihoods. Explained and understood this way, it is unquestionable that the law, with its universally accepted goals of protection, recognition and equal treatment, should have a role in achieving environmental justice. And it should be criticised when it does not achieve it. In recent decades, environmental justice has been at the fringes of an Australian environmental legal system hamstrung by its focus on the concept of ecologically sustainable development and an idea that participation is sufficient where access to courts and decision makers is available. Where justice has been raised in debates, submissions or in the arguments of communities, consideration of it has been limited, and the role of communities has been marginal. The present position of justice in environmental law is confined by the administrative law system and the sustainability frameworks that the law is still grappling to interpret and often implements in ways that take us further from the environmental protection objectives explicit in our laws. Invited into the legal system, communities exposed to pollution or threats to ecosystems that they value share stories of being unjustly treated by industry and government, but the law has seldom intervened for them in a responsive, let alone restorative, way. This thesis argues that Australia needs a new justice framework for its environmental laws: a framework that is drawn from the communities that have endured injustices and that is conceptualised as a plural and multifaceted idea that is not simple to define but is easy to explain. At its core, the framework would involve prioritising human and ecological communities of disadvantage above other interests or goals, and imposing expectations on governments that they will not frustrate the realisation of a recalibrated distribution of power and control within the law. The thesis uses three case studies - from New South Wales, Victoria and Tasmania - to highlight the presence of justice arguments within Australian environmental law and, through a critical appraisal of the outcomes of those case studies, to emphasise the relevance of a new justice-based foundation for the law.