Sustainability and the law

Sustainability is most often understood in relation to the principles of ecologically sustainable development (ESD), which can be broadly defined as the ‘using, conserving and enhancing of the community’s resources so that ecological processes, on which life depends, are maintained, and the total quality of life, now and in the future, can be increased’.

Internationally accepted principles of sustainable development include intergenerational equity, the polluter pays principle, the precautionary approach, biodiversity conservation and ecological integrity, as well as improved valuation and pricing of environmental resources. For more information concerning the principles of sustainable development, the Brundtland Report ‘Our Common Future,’ published in 1987 by the UN World Commission on Environment and Development, sets out the principles in greater detail. In brief, the precautionary principle requires that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The inter-generational equity principle means the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced, for the benefit of future generations.

The principles of ESD are included in the objects clauses of a number of key ACT environmental laws, but are absent from others. For example, the Utilities Act 2000 has amongst its objects ‘to promote ecologically sustainable development in the provision of utility services’ (s 3(e)), and the long title of the Water Resources Act 2007 is ‘an Act to provide for sustainable management of the water resources of the Territory, and for other purposes’. The Nature Conservation Act 2014 also includes ‘promoting the principles of ecologically sustainable development’ (s 6(h)). However, this same object has recently been removed from the Environment Protection Act 1997, which now simply lists the ‘effective integration of environmental, economic and social considerations in decision-making processes’ as an objective (s 3C(1)(d)).

The Planning Act takes a slightly different tack; it has an objective of a planning and land system that contributes to the orderly and sustainable development of the ACT. The term ESD is not applied; rather the Act speaks of sustainable development as the effective integration of social, economic and environmental considerations in decision-making processes (s 9). Generally, such objects are intended to direct and guide the administration of environmental laws. However, environmental sustainability is not a binding consideration in government decision-making and the extent to which consideration of ESD informs planning decisions is at the discretion of the decision-maker. They may choose to consider other factors, including economic considerations, which are also included in the definition of sustainable development. Given the discretionary nature of the requirement, only administrative acts seriously at variance with these principles would potentially be vulnerable to legal challenge.

Previously, all ACT departments and public authorities were required to include in their annual report a section on how their activities have accorded with sustainable development principles via the former section 158A of the Environment Protection Act 1997. This requirement was removed from that Act following amendments to the Annual Reports (Government Agencies) Act 2004 (ACT), which were made in 2014. However, agencies are required to provide a detailed to report on ecologically sustainable development as set out in the Annual Reports (Government Agencies) Notice 2015 (Notifiable Instrument (2015-207)) under the Annual Reports Act. One problematic aspect of this change is that a future unsympathetic government could easily water down the reporting requirements by issuing a new notice, rather than seeking the agreement of the Legislative Assembly.

The Commissioner for Sustainability and the Environment Act 1993 (ACT) created the office of the ACT Commissioner for the Environment, whose role is to operate as an ombudsman for environmental and sustainability matters, conducting investigations on complaints from the community regarding the management of the ACT’s environment and also as directed by the Minister for the Environment. Among the objectives are to ensure regular reporting on progress towards ecologically sustainable development by the Territory and territory authorities; and to encourage decision-making that facilitates ecologically sustainable development (s 2B). An important requirement of the Commissioner’s role is to produce annual State of the Environment reports for the ACT, which must include an assessment of the condition of the environment and an evaluation of the adequacy and effectiveness of environmental management (s 19 of that Act).

Part 4.5 of the Nature Conservation Act requires the Conservator of Flora and Fauna to prepare action plans for relevant species and ecological communities and for key threatening process (s 101). Action plans must set out proposals to ensure, as far as practicable, the identification, protection and survival of threatened species and ecological communities; and to minimise the effect of key threatening processes. In preparing a draft action plan, the conservator must consider the impact of climate change on the species or community; threats to the species or community; the connectivity requirements and critical habitat of the species or community (s 101) and consult with the Scientific Committee (s 102). Action plans are important strategic and reference documents for sustainable development and inform the development of management plans for public land and urban planning policy development and decision-making.

While principles of sustainable development are integrated into these ACT statutes through the objects of the legislation, the ACT has not enacted an over-arching statute specifically to promote sustainable development in government and private decision-making. The proposal for an overarching Sustainability Act was first raised in 2004, but has since disappeared from prominence. Such an Act could serve as a means to coordinate the ACT’s environmental laws, increase the profile of sustainability in government decision-making, in the administration of legislation, the allocation of resources and government procurement. A Sustainability Act would set out the government’s responsibilities and ensure that sustainability concerns guided all decision-making. While sustainability considerations in decision-making processes do not necessarily lead to sustainable outcomes, this would be a positive development.

The legal framework for sustainability is only one aspect. Without adequate implementation and commitment at a policy level there is little chance that the goals embedded in legislation will be achieved. The ACT government has introduced many environmental strategies including a sustainability policy, People, Place, Prosperity: the ACT’s Sustainability Policy, which was revised in 2009. Further, the ACT Government uses a Triple Bottom Line assessment framework to identify social, economic and environmental impacts (for example, as a mandatory part of the Cabinet submission process) and to an uncertain extent this has been integrated into policy development, as a matter of policy, rather than law. In addition, it has published specific policies or strategies that target key sectors such as the ACT Waste Management Strategy: Towards a sustainable Canberra (2011-2015); Transport for Canberra; the AP2: A new climate change strategy and action plan for the Australian Capital Territory; and the ACT Water Strategy 2014-44: Striking the Balance, all of which are available on the Environment and Planning Directorate website (see Contacts list at back of this book). Whether sustainability will be achieved depends upon the details of whether these policies, in combination with legislation, will be adequate to change individual, corporate and institutional behaviour and decision-making.