Post on 27-Dec-2015
Characteristics of successful environmental courts and
tribunals (“ECTs”)
by
The Hon. Justice Brian J Preston SC
Chief Judge, Land and Environment Court of NSW
Introduction
• Exponential growth in ECTs – over 350 of these specialised fora now exist in many countries and regions of the world
• Can be a separate Environment Court or Environment Tribunal (“green court”)
• Can be an Environmental Division of traditional court (“green bench”)
• Can be designated environmental judges (“green judges”)
Purpose of presentation
• Identify 12 key characteristics that are required for an ECT to operate successfully in practice
• Draw upon examples from many jurisdictions around the world, especially throughout Australia and New Zealand
• In the process, identify best practices from these jurisdictions in order to assist those countries which are establishing a new ECT or wish to improve the operation of an existing ECT.
1. Status and authority• More successful ECTs:
enjoy a more comprehensive jurisdiction; are recognised by governments, stakeholders and the
wider community alike as the appropriate and legitimate forum for resolving disputes;
have judges and members who are environmentally literate;
develop environmental jurisprudence and serve a value-adding function.
examples from NSW, New Zealand, Sweden, Brazil; less successful examples from Trinidad & Tobago and Bangladesh.
2. Independent from government and impartial
• Need for formal independence from legislative and executive branches of government, as well as other external influences (e.g. media and pressure groups)
• Decision-makers must be impartial• Independence and impartiality may be enabled by
institutional arrangements and rules relating to selection of judges, tenure for judges and so on
• Problem of “captive tribunals”• Interesting examples from Brazil, the United States and
Austria.
3. Comprehensive and centralised jurisdiction
• An ECT should enjoy comprehensive jurisdiction to hear, determine and dispose of various types of matters and disputes arising under environmental laws
• Comprehensive and integrated jurisdiction: administrative, civil and criminal proceedings
• The environmental laws themselves must have adequate subject matter coverage, be effective and be enforceable
• Interesting examples from Ireland, Kenya, China and Canada
4. Judges and members are knowledgeable and competent
• Members should ideally be environmentally literate prior to appointment
• Continuing professional development
• Use of technical experts• Interesting examples from
Sweden, NSW, and other Australian jurisdictions.
5. Operates as a multi-door courthouse
• Successful ECTs should: offer alternative dispute resolution (e.g.
mediation and conciliation) Adopt and use a formal screening and intake
process to determine most appropriate environmental dispute resolution mechanism
Interesting examples from NSW, Queensland and New Zealand
6. Provides access to scientific and technical expertise
• Provision of internal and external scientific and technical expertise
• Procedures to reduce adversarial bias in external experts of parties – e.g. court appointed and parties’ single experts; concurrent evidence.
• Problem-solving approach rather than conflict-based courtroom “battle of the experts”
• Interesting examples from NSW and Queensland
7. Facilitates access to justice
• Substantive decisions of ECT can uphold fundamental constitutional, statutory and human rights of access to justice – e.g. access to information and rights of public participation.
• ECT can adopt innovative practices and procedures to facilitate access to justice – e.g. liberally construing standing requirements and relaxing rules on costs.
• Other access initiatives ECTs should adopt – e.g. geographical accessibility and innovative use of technology.
• Interesting example of Land and Environment Court of NSW• Non-specialist or generalist courts can also facilitate access to
environmental justice – e.g. Supreme Court of the Philippines: Oposa v Factoran 33 ILM 173 (1994).
8. Achieves just, quick and cheap resolution of disputes
• Allocation of matters to ECTs – specialised bodies are better positioned to move more quickly and effectively through environmental cases
• ECTs must have effective case management procedures
• Need to deal promptly with interlocutory applications and rebut attempts to adjourn or delay the final hearing and disposal of the proceedings.
• Interesting examples from NSW, Queensland and Western Australia
9. Responsive to environmental problems and relevant
• Successful ECTs are better able to address the pressing, pervasive, and pernicious environmental problems that confront society (such as climate change and loss of biodiversity)
• Example: Climate change litigation in the Land and Environment Court of NSW
• Restorative justice as an approach to sentencing for environmental crime
10. Develops environmental jurisprudence
• Example of Land and Environment Court of NSW – development of jurisprudence on principles of ecologically sustainable development through logical progression of law by way of analogy.
• Development of environmental jurisprudence by specialised ECTs may also facilitate cross fertilisation of environmental law whereby domestic ECTs draw upon the environmental jurisprudence of other countries – example of Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10
11. Underlying ethos and mission
• Many of the ECTs located throughout the world that have enjoyed greater success have a clear sense of direction with respect to the role they play in the broader schema of environmental governance.
• Examples of statement of purpose for ECTs from NSW and Tasmania.
12. Flexible, innovative and provides value-adding function
• An ECT’s decisions and work can generate value apart from the particular case or task involved
• An ECT may add value by: Developing environmental jurisprudence; Formulating and applying non-binding principles or
guidelines for merits review cases – e.g. Planning Principles of the Land and Environment Court of NSW
Innovations in practice and procedure – e.g. implementation of the International Framework for Court Excellence and development of JIRS environmental crime sentencing database by Land and Environment Court of NSW
Conclusion
• Identified 12 characteristics that are required for an ECT to operate successfully.
• These best practices will be useful to those countries that currently do not have an ECT
• Even for those ECTs that have enjoyed much success and already display many, if not all, of the characteristics identified, there is still much work to be done.
• All ECTs should, in the spirit of an adaptive management approach, continually monitor, review and adjust their operations in the pursuit of excellence.