Author: Dr Ted Christie*
“Coal seam gas development, environmental legislation in Queensland and power: Towards a pathway for conflict resolution and environmental justice” (2012) 32 Qld Lawyer 225.
I think the overriding theme that came out at the end of the day [of the Senate Inquiry into coal seam gas] in Roma was balance. Farmers feel that when it comes to them versus the coal seam gas companies the power resides with the gas companies. The Councils feel that the gas companies have the power. And farmers feel that when you take the environment into account that the gas companies have the power there. (Pip Courtney, ABC Television 7.30 Queensland, 25 July 2011)
Perceptions of potential adverse environmental impacts from CSG developments in Australia have triggered off public controversy and debate. The government is now confronted with a political firestorm created by polarised scientific and public opinion over the CSG industry.
Resolving the conflict over CSG-related issues presents a dilemma for the government on how it is to be best achieved. Any failure by the government to resolve the underlying causes of conflict means that CSG-related issues may persist as a source of resentment, to re-emerge at a later time and require resolution. Litigation, the alternative to conflict resolution, has already commenced by community groups in Australia.
Public interest environmental conflicts, like the CSG conflict, are characterized by their multi-party involvement. A viable decision is one where all competing viewpoints, including farming, green, indigenous and local communities and mining, have been properly taken into account. The decision end-point must effectively reflect the general public interest, rather than being weighted towards a sectional interest.
Finding a sustainable land use balance where competing interests can co-exist requires a public participation process that “meaningfully involves” all competing interests. But, this is dependent on power being fairly evenly balanced between all interest groups and not skewed in favour of any sectional interest.
An unexpected feature of the current CSG controversy in Queensland is that there seems to be a community perception that Queensland’s environmental legislation does not take proper account of the CSG industry.
An explanation for this viewpoint is that Queensland’s environmental legislation is complex; where regulatory control is based on scientific concepts and terms, some of which have no statutory definitions. Understanding environmental legislative rights and duties and scientific terminology poses difficulty for many – laypersons and lawyers.
But, as a former High Court of Australia justice, His Honour Michael McHugh J (1995), observed:
“The rule of law is meaningless unless people know their rights and duties in the sphere in which they choose to act.”
The Environmental Protection Act 1994 (Qld) and the Water Act 2000 (Qld) directly apply to administrative decision-making and environmental regulatory control of the CSG industry in Queensland. The Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Qld), passed on 14 August 2012, amended both statutes.
Key legal rights and duties under these statutes which are relevant for environmental protection and ecologically sustainable development, together with the new licensing and approval regulatory controls for the CSG industry, are reviewed and analysed. Understanding these legal rights and duties is crucial if the community is to have an adequate basis of power to effectively participate in resolving CSG-related issues.
The judicial review process is also discussed as a further source of knowledge power. Possible areas of legal and scientific uncertainty for CSG-related issues, where a judicial review challenge might arise under both statutes, are considered.
Strategic use of knowledge power of legal rights, duties and judicial review does not necessarily mean more litigation over future land use in regional Queensland. Instead, it is the basis for offsetting power imbalance between parties holding competing interests to CSG.
Power, properly exercised in this regard, should be seen as a “trigger” for the government, the community, farmers and miners “to take joint action and share responsibility” to find a viable solution for sustainable land use – where co-existence not conflict prevails.
* MAgrSc (Qld) PhD (Macq) BAB (Qld), Barrister and Mediator, Queensland Bar. Author of Finding Solutions for Environmental Conflicts: Power and Negotiation (New Horizons in Environmental Law Series, Edward Elgar Publishing, Cheltenham, United Kingdom, 2008, 2009). For more information, see also http://www.environment-adr.com/. Ted Christie was awarded a Centenary Medal for long and distinguished service to the community through education and the law.