IT is beginning to look as though law has evolved to serve and protect the deity, "The Environment". Human activity is, almost by definition, evil and the enemy.
The NSW Environmental Defender's Office "continued to run landmark cases for community groups with important environmental outcomes", claims Jeff Smith, the executive director of the EDO, in its recent annual report.
One of the two cases Smith cited was the Berrima Colliery case where the Land and Environment Court refused the expansion of a mine because
"it was not in accordance with the principles of ecologically sustainable development and the precautionary principle".
The precautionary principle was the sleeping giant of environmental law in Australia from the early 1990s until 2006 when Chief Justice Brian Preston of the Land and Environment Court of NSW roused it from its slumber with his interpretation of the principle in Telstra Corporation v Hornsby Shire Council.
In a 2009 speech, Chief Justice Preston summarised his interpretation of the precautionary principle:
"In essence, the principle operates to shift the evidentiary burden of proof as to whether there is a threat of serious or irreversible environmental damage.
Where there is a reasonably certain threat of serious or irreversible damage, the precautionary principle is not needed and is not evoked. But where the threat is uncertain, past practice had been to defer taking preventative measures because of that uncertainty.
The precautionary principle operates, when activated, to create an assumption that the threat is not uncertain but rather certain.
Hence, if there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty, the precautionary principle will be activated.
A decision-maker must assume that the threat of serious or environmental damage is no longer uncertain but a reality.
The burden of showing that this threat does not, in fact, exist or is negligible effectively reverts to the proponent of the project.
If the burden is not discharged, the decision-maker proceeds on the basis that there is a threat of serious or irreversible environmental damage and determines what preventative measures ought be taken," Justice Preston said.
In the Berrima Colliery case, the court applied the principle.
It found there was a threat of serious or irreversible environmental damage that was uncertain.
The threat was the impact on surface and underground water. The assumption was then made that the threat of damage was certain and the burden shifted to the coalminer to prove it was not serious or irreversible damage or was negligible. Unsurprisingly, given that by definition the threat was uncertain, the coalminer could not. It sought, unsuccessfully, to address the problem by a water management plan. The court refused the application.
The court noted that the colliery had operated continuously since about 1926, and serves as a dedicated and sole source of coal for the nearby cement works.
The court referred to a submission the coalminer made that the continued operation of the colliery was important for employment and investment in the region and its significant role in supplying coal to the cement works. The court did not consider any economic or social impact of the project in making its decision.
The precautionary principle is just one example of the development in environmental law that has resulted in "The Environment" being paramount.