Amanda Kennedy

Taking away David’s sling*: environmental justice and land-use conflict in extractive resource development

ABSTRACT Exploring cases of gas and coal extraction in Australia and the U.S.A., this paper considers instances in which legal and political frameworks have been used to prioritise development interests and minimise opportunities for community objection. Two case studies illustrate the role of law and the influence of politics on environmental conflict, conflict resolution, and participation in decision-making associated with resource extraction. A range of barriers to meaningful community participation in land-use decision-making are exposed by combining legal and non-legal concepts of equity and justice with ideologies of democracy and representation. These include asymmetry in information and resources available to parties; instances of misrecognition of weaker participants; and examples of malrecognition, where community attempts to engage democratic rights of public participation were thwarted by the strategic and deliberate actions of both industry and government. This paper illustrates the limits of current legal approaches to addressing land-use conflict and contributes to the developing scholarship of environmental justice as an analytic framework for addressing complex environmental and social justice issues.

Introduction: a jurisprudence of environmental governance?

The history of science shows that the evolution of scholarly investigation follows two lines of development. The first is that innovations undergo a transformation from relatively low efficiency to higher efficiency as the discovery is refined and applied; implementation skill is gained through experience; and incremental inventions that improve on the original are brought to bear.1 This phenomenon has been observed in many fields of knowledge. It is well illustrated by the trajectories of computer technology, psychological science, transport methods and in almost any other area of human endeavour where disciplined and purposeful development is applied.2 The second evolutionary pattern is that in most fields deepening of knowledge leads to differentiation into specialisations. This is illustrated by the physical sciences. Prior to the Scientific Enlightenment, religion, philosophy and science were intermixed. Gradually, subjective elements were excised from what was characterised as legitimate science. Philosophy, religion and science became distinct. These investigations evolved along different paths, as scholars and practitioners tackled increasingly specialist challenges. In science, what are now called chemistry and physics were originally intermixed, but gradually developed distinct epistemology and methodologies, as researchers pursued more specialised knowledge. Within physics, for example, there are epistemological differences between nuclear physics, planetary physics, and many esoteric and applied pursuits of principles and methods of this science. Over time sub-fields proliferate and become more knowledgeintense. They interact less with the parent field from which they evolve or

Lost in translation : threatened species law in Australia

This chapter will explore the current trends in biodiversity in Australia, the mining boom underway and the evolution of environmental law in Australia since the ‘Rio Declaration on Environment and Development’ (commonly known as the Rio Declaration). The discussion will use a case study focusing on threatened species legislation as the lens to explore the issues. It will concentrate on an IUCN red listed endangered species, the Giant Barred Frog (Mixophyes iterates) whose habitat is potentially threatened by mining activities in the state of NSW, Australia. Institutional issues surrounding the protection of threatened species and their habitats will be examined by comparing legal intent and actual practice. The chapter concludes that the intent of species protection law is currently ‘lost in translation’. New policy initiatives currently underway in Australia will be critiqued and recommendations proposed for law and governance reforms required to adequately protect threatened species.

Agricultural land use conflict in the context of climate change: an Australian case study

The rapid expansion of extractive developments in recent years has seen conflict over agricultural land use increase in prevalence and scale in communities around the world. This includes conflict over the expansion of existing fossil fuel operations (for example, coal mining) and the development of newer industries (for example, coal and shale bed methane gas) upon land already used for agricultural purposes. In the context of global climate change and concerns over food security, it is imperative that regulatory arrangements for determining land use are equitable, effective and efficient to avoid widespread social conflict

Effective Law for Rural Environmental Governance: Meta‑Governance Reform and Farm Stewardship

Protection of biodiversity is principally concerned with the governance of rural lands and surface waters. This is because intact biodiversity is most likely to be found in rural areas that have not been converted to industry or urbanisation. But Australias biodiversity performance is not heartening, despite the existence of many legal and other instruments and programs. Threatened species in particular have suffered, with 50 animal species and 48 plant species listed as extinct since the passage of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Public funding for biodiversity protection is also insufficient and under threat, while the complexity of the biodiversity challenge is increasing.

The search for environmental justice

Environmental law in the 20th century emerged from a growing awareness of the increasing harms to the physical world, and thus to the interests of human beings, from the impacts of technology, industry and growing populations. The legal instruments used were principally regulatory, relying upon the powers exercised by states over corporations and citizens within their jurisdictions. Many developments have altered the nature of the challenges and thus the focus and methods of environmental law. This has generated many instruments and strategies, starting with the explosion of environmental regulation last century, and then the use of market instruments and industry and civil society initiatives. Part of the process has been a realisation that accumulating environmental harms can prejudice ecosystems, and jeopardise the health and welfare of people. There has been a growing awareness that those directly dependent upon natural systems, particularly Indigenous peoples, are often those most threatened. There is an increasing recognition that nationstate governance systems are often insufficiently effective, particularly in recognition of and respect for the interests of the less powerful. As a result the ideal of environmental justice has become an important concern. Gradually justice concepts are becoming part of the political narrative of international and national environmental law. Frequently in the early stages of development of social innovation there are competing paradigms.1 The political banner ‘environmental justice’ denotes many different ideas, generally pursuing an ideal of improving fairness in how natural resources are used and shared, and how the costs